Law Offices of Thomas P. Miller, P.C.

Effective June 1, 2014, the Religious Freedom and Marriage Fairness Act granted same sex couples “equal access to marriage,” in particular: (a) all laws of this State applicable to marriage, shall apply equally to marriage of same-sex and different-sex couples and their children, and (b) parties to a marriage and their children, regardless of whether the marriage consists of a same-sex or different-sex couple, shall have the same benefits, protections and responsibilities under law. 750 ILCS 80/10.

The term, “all laws” is obviously, all inclusive, and therefore, a same-sex couple has absolutely equal footing with a different-sex couple under Illinois law. This means that same-sex couples can marry, adopt, separate and divorce. A same-sex wife or husband has a right to gain access to her/his spouse when the latter is in a hospital. A spouse in a same-sex divorce has the rights to custody, parenting time, maintenance (alimony), child support, etc. That same spouse has obligations to provide proper supervision and support for the couple’s children, as well as to contribute to the support of the other spouse.

Along with obligations and rights, a same-sex couple is equally unprotected as a different-sex couple in certain instances. A same-sex partner has no rights to marital property or maintenance if not married, as Illinois does not recognize common-law marriage. In the event of his/her partner’s death, an unmarried partner does not have survivorship rights to the jointly owned home (thus potentially having to go through probate proceedings). Children born during the partners relationship but not during marriage are not presumed to be children of the couple, thus the parents that are not married may have to fight to establish their parental rights more than married parents.

Federal benefits that flow from marriage are equally applicable to same-sex married couples since the U.S. Supreme Court held the federal Defense of Marriage Act (DOMA) unconstitutional in 2013. These benefits are many and of extreme value, many financial in nature, such as being able to file taxes jointly and be beneficiaries on ERISA retirement plans.

Other benefits include family immigration. For example, a U.S. citizen can petition for a foreign fiance(e) to come to the U.S. on a K-1 visa to marry in the U.S., or for a foreign spouse to arrive in the U.S. on an immigrant visa, both resulting in the foreigner obtaining a “green card.” U.S. permanent residents have family reunification rights. Foreigners on non-immigrant work and student visas can bring their spouses into the U.S. along with them. All of these rights are now available to same-sex couples.

However, the benefits, rights and obligations only apply if you are married. All too often laws liberalize and change, but portions of the communities that could benefit from the change do not, simply because they remain unaware of the change or do not take the necessary step(s) for other reasons. While no one ought to marry just for the purpose of obtaining a certain benefit, all people, including same sex-couples should be aware that formalizing their relationship through marriage carries with it multiple rights, benefits and obligations, and that most of these do not apply to unmarried couples, and that in the event of tragedy or breakup, being unmarried may prove to be very detrimental.