THE ILLINOIS CIVIL UNION LAW
Tanya Witt filed the first same sex civil union divorce case in DuPage County, Illinois in 2011.
Before the United States Supreme Court held that state laws banning same sex marriage were unconstitutional, Illinois enacted a law that gave same sex couples in a “civil union” the same rights as a married couple. On December 1, 2010, the Illinois Legislature passed The Religious Freedom Protection and Civil Union Act. Governor Quinn signed the bill and it became effective in June 2011. The bill provided that civil unions would have all of the same legal rights and duties that Illinois law grants to marriage. This meant that the term “spouse” in any Illinois law applies to parties to a civil union as well as to married couples. Same sex and opposite sex couples can enter into civil unions. Illinois civil unions can be converted into marriages but marriages cannot be converted into civil unions.
In 2011, individuals to a civil union gained important rights in Illinois including: hospital visitation, making medical decisions when spouse is unable, receiving state benefits as a surviving spouse, claims against third parties for wrongful death of a spouse, spousal rights in probate, claiming spousal privilege if asked to testify against one’s spouse, and the same rights in a divorce as married couples. Before 2015, some other states did not recognize Illinois civil unions or same sex marriage. Before 2015, if a couple entered into a civil union in Illinois but then moved to a state that did not recognize civil unions or same sex marriage, the couple could not dissolve their civil union because Illinois has a residence requirement for dissolving civil unions or marriages.
Because Illinois’ civil union law is a state law, the federal legal rights and duties of marriage were not granted to civil unions. That all changed when the United States Supreme Court legalized same sex marriage in all fifty states. Once same sex marriage became legal at the federal level, the following federal rights applied to Illinois civil unions: filing joint tax returns, collecting federal benefits (social security, veterans’ benefits), immigration rights, and legal recognition of the union by other states.
Parties to a civil union dissolve their union in the same way that married couples divorce. This means that the potential right to maintenance (“alimony”) and the right to an equitable distribution of marital property applies to civil union couples. Thus, couples to a civil union might benefit from a premarital (“prenuptial”) agreement just like married couples.
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- Illinois Bar Association – Appointed to The Family Law Section Council
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