The same divorce laws apply to same-sex spouses in Illinois as they do to any other married couples. There is the same presumption of the equitable distribution of marital properties and allocation of parental responsibilities. The average same-sex divorce may be slightly different from the average heterosexual divorce because the recency of the same-sex marriage law makes it unlikely that they will be divorcing after a long-duration marriage. Divorcing same-sex spouses are more likely to have unique complications with establishing legal parentage of their children, which can impair one of the spouse’s parental rights.
The Illinois Parentage Act of 2015 defines four ways that someone is legally presumed to be the parent of a child if they did not give birth to the child:
- The person is married to the mother at the time of birth, excluding surrogacies;
- The child was born within 300 days after the mother and person were divorced;
- The person and the mother were married at the time of birth, but the marriage was later ruled invalid; or
- The mother marries the person after the child’s birth, and the new spouse agrees to be the parent.
The law establishes a clear path to legal parentage as long as the biological mother is one of the spouses. This works for two married women when one of them uses artificial insemination to have a child. However, two married men do not have the same presumptive parenting rights when one of them uses a surrogate in order to be the biological father.
A man is not automatically presumed to be the legal co-parent of his husband’s biological child, even if he has acted as the child’s parent since its birth. He may not have the right to parenting time with the child if he divorces the biological father or the biological father dies. Adoption is the best way to establish legal parentage of the child in this situation. The non-biological father can petition for second-parent adoption, which the court should approve as long as the biological father is cooperative.
Contact a Kane County Divorce Lawyer
All divorces are complicated and emotional experiences, whether they involve same-sex or different-sex spouses. You need a divorce lawyer to make sure that you reach a divorce settlement that meets your needs for life after marriage. A Batavia, Illinois, divorce attorney at Van Larson Law, P.C., can answer your questions and lead you through the process. Schedule a consultation by calling 630-879-9090.