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How Are Marital Assets Divided in a Same-Sex Divorce in Illinois?

 Posted on December 16, 2019 in Divorce

Oak Park property division attorney for LGBTQ couplesThe state of Illinois legalized marriage between two people of the same sex in 2013. Same-sex couples have the same rights and responsibilities as their heterosexual counterparts regarding marriage. This means all the same issues will need to be resolved in the event of a divorce. In the Illinois Marriage and Dissolution of Marriage Act, marital property is defined as any assets that were acquired by either spouse after they were legally married and before a judgment of legal separation. In a divorce, any marital property is subject to “equitable distribution.” This method involves splitting assets acquired during the marriage in a “fair” manner, but not necessarily completely equally or in half. Same-sex couples who divorce can face unique challenges when dividing their property due to the nature of their relationship.  

What Is “Ownership of Property”?

Determining who gets what in a divorce is not always simple for LGBTQ couples. Same-sex partners may have been together for a long time before they could legally marry. Therefore, the partners may have brought many assets to the marriage, both together and separately. These can include cars, a house, furniture, artwork, clothing, and more. Items acquired before a couple was legally married are considered “separate property,” even if the partners had behaved as if they were married for a long period of time.

Determining ownership of property acquired before the date of marriage can be a complicated undertaking, since some of these assets may have been “commingled” during the relationship. That means even though one partner purchased an item, the other partner could have used or benefited from it. In many cases, a prenuptial or postnuptial agreement can be helpful, because it can specify who will own certain assets if the couple decides to get divorced.

Factors Used to Determine Distribution of Marital Property

When it comes to dividing marital property, the court will consider a variety of factors. The court may take into account each party’s contributions that enhanced the value of a particular marital asset. For example, one spouse may have worked to rehab the couple’s home by upgrading to new appliances, painting the house, or installing new flooring.

If a same-sex couple cannot agree on their own how to split their assets, the court will make the decision. The following are a few of the main issues a judge will look at when deciding how marital property will be distributed:   

  • Length of the marriage 

  • Income and/or future earning potential of each spouse 

  • Age and physical health of each spouse

  • Whether or not children are involved and how this will affect the division (e.g., the custodial parent may wish to stay in the marital home while the children are growing up)

  • One spouse’s contribution to running the household (i.e., as a stay-at-home parent or homemaker)

  • Each spouse’s inheritance and/or retirement benefits, if applicable

Contact an Oak Park Same-Sex Divorce Lawyer

Determining how to divide marital assets or property in a divorce can be challenging. Whether a couple is homosexual or heterosexual, the factors that are considered during the division process are similar. If you are considering divorce but are concerned about what you may receive in the settlement, it is important to seek professional legal advice. The established Cook County asset division attorneys at Wakenight & Associates, P.C. understand Illinois law regarding same-sex marriages and divorces. We will make sure your rights are protected during the proceedings so you receive what is rightfully yours. Call our office today at 708-848-3159 to schedule your free consultation. 


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