Fight for Same-Sex Marriage Includes Fight for Same-Sex Divorce

 Posted on December 28, 2013 in Family Law

With Governor Pat Quinn’s signature on November 20th, Illinois is now the 16th state in the US to recognize same-sex marriage. This means that on both a state and Federal level, same-sex marriage has the same rights, responsibilities, and guarantees as a marriage between a man and a woman. It also means that same-sex couples can dissolve their marriages with the same amount of stress and uncertainty as different-sex couples. But while the fight for equal rights to marriage is the most visible, the fight for equal rights to divorce is part of that struggle. And for couples in any of the states that do not recognize same-sex marriage, the fight goes on.

Mississippi Denies Divorce to Same-Sex Couple

Associated Press is reporting that Lauren Beth Czekala-Chatham was denied a divorce from her spouse of 4 years because the state in which she filed, Mississippi, does not recognize same-sex marriage. Lauren and her spouse, Dana Ann Melancon, traveled to California to get married in 2008. While they are married in the eyes of California, the many states that recognize gay marriage, and the Federal government, they were never married according to Mississippi.

There are many implications for same-sex married couples unable to get a divorce. The most immediate is division of property. Under Illinois law, most property obtained by the couple during the life of the marriage is deemed “marital property,” which is either divided up equally between the spouses, or sold and the proceeds split. If the couple was never legally married, then the ownership of the property would be in dispute.

Another issue is alimony, or spousal support. In Illinois, spousal support is money provided from one spouse to the other to help ease the transition from married life into single life. However, if there was no marriage, then there is no “spouse” to offer support.

Czekala-Chatham and Melancon settled their dispute over property with the help of their attorneys. However, it would have been far easier for the couple if they had access to the resources traditionally made available to married couples. In addition to that, the two women may still actually be married.

Not Married in MS; Still Married in CA?

Mississippi refused the two women a divorce, because the state believes they were never married to begin with. But does that mean they are still married in California?

Under Illinois law, any marriage recognized by any other state is valid in Illinois. After July 1st, when same-sex marriage will be recognized in Illinois, this will be true of out-of-state gay marriages as well. Subsequently, if these two women never had their marriage dissolved, they would still be legally married.

This does not mean that they would have to act married, but it would have repercussions if they ever wished to marry again. Bigamy is a crime in many jurisdictions. Bigamy also renders void any marriage that comes later. In order to proceed with a new marriage, the old marriage must be dissolved, which may mean establishing residency in a state that recognizes same-sex marriage, which in Illinois is 90 days. For someone living in Mississippi, this could be an insurmountable hardship.

Marriage and Divorce in Illinois

Whether you are considering marriage or divorce in Illinois, the path is fraught with potential legal pitfalls. A prenuptial agreement can protect you before marriage; an experienced attorney can fight for you during divorce. If you are contemplating marriage or divorce, contact an experienced Illinois family lawyer today.