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LGBTQ Family Law

An Introduction to Civil Unions, Cohabitation & Domestic Partnership Agreements

With the goal of protecting our clients parental rights and interests, our attorneys at Davis Friedman have experience representing clients of same-sex relationships in challenges resulting from both financial and parenting disputes to help them obtain the most advantageous result imaginable. Our skilled attorneys are knowledgeable in the area of civil unions, LGBTQ marriage, and same-sex relationships.

Civil Unions in Illinois

On June 1, 2011, when the Illinois Religious Freedom Protection and Civil Unions Act became effective, a couple in a civil union became entitled to all the legal benefits and protections and are subject to the same legal responsibilities that applies to married couples under Illinois law.

Since its inception, this law has prompted many other laws in the state of Illinois to include civil unions. Our divorce attorneys have strong familiarity, capability, and have the skills to best represent the rights of the couples requiring a dissolution of a civil union. Based on their firm understanding of the law, these knowledgeable attorneys work toward minimizing any financial burdens that may arise throughout the dissolution to help ensure that you are getting the best results available to you.

Understanding Cohabitation/Domestic Partnership Agreements

Our attorneys create legal agreements which allow both same-sex and opposite-sex couples to control how they plan on sharing any assets. These agreements are known as cohabitation agreements or domestic partnership agreements which include various sections that state the intentions of both parties in the event of a dissolution, including but not limited to:

  • how to divide property
  • child custody objectives
  • child support intentions
  • estate planning choices
  • life planning choices (health care proxies and living wills)

Cohabitation agreements and domestic partnership agreements are similar to prenuptial agreements in that they set forth terms and conditions the parties will follow both when together and upon separation. They may be beneficial tools in discussing these issues prior to dissolution when both parties have a strong focus on their assets, property, and children. This helps to take the emotion out of decisions that must be made upon dissolution for important things like property division, child custody, support and visitation.

Spousal maintenance, also known as alimony, is not applicable to non-married couples. Furthermore, equitable distribution in property division does not apply to parties that are not married. Therefore, if the parties share a home or property, making your intentions clear may be extremely important to assure your rights and needs are met in the event of a dissolution. Illinois law allows individual, joint or second-parent adoptions regardless of sexual orientation. In both artificial insemination and surrogacy, it is important that non-birth parents adopt their spouse’s biological children so they can become the legal second parent.

LGBTQ Life & Estate Planning

At Davis Freidman, we offer you attorneys that are skilled in practice areas that are vital to individuals within the LGBTQ community, particularly:

  • Estate Planning
  • Real Estate
  • Corporate
  • Civil Litigation

In Illinois, when a partner is unable to take care of himself or herself, neither marriage nor a civil union will be enough to guarantee who a court will appoint as guardian or how a court will distribute property upon a partner’s death. Our attorneys and work with clients to be sure that both partners wishes are carried out through the creation of the following documents:

  • Wills
  • Power of Attorney for Property
  • Power of Attorney for Healthcare
  • Prenuptial and Postnuptial agreements

Wills

The proper execution of a valid will is the premise of any estate plan. A will helps one to retain control over the division and distribution of property after his or her death. It allows the decedent to name the person who will have the ultimate responsibilities of handling the distribution. Our attorneys work with you to help minimize any expenses that may be involved here as well.

For LGBTQ families whose marriage and civil union may not be recognized in every state a will is especially important because it allows individuals to nominate a guardian for any minor children or dependents.

If one dies without a will, the Illinois courts have discretion to determine the disposition of your assets upon death. Additionally, the court will choose a guardian for any children regardless of whether this is consistent with the decedent’s wishes.

Power of Attorney for Property

The durable power of attorney for property is a document that designates another person to undertake any financial responsibilities that ensue after ones death. This document authorizes an appointed individual to access any accounts should the owner become incapacitated or unable to administer his or her assets.

A durable power of attorney for property can properly ensure your accounts will be managed according to your wishes, rather than by a court appointed guardian. In particular, this is a vital tool for LGBTQ families to make sure that one partner will be able to handle the affairs of the other partner if need be. These apply regardless of whether one is visiting or living in a state in which their marriage or civil union is not recognized.

Power of Attorney for Healthcare

Another useful document is the power of attorney for health care, which allows a person to appoint an agent to express his or her preferences regarding medical care and treatments if the person becomes incapacitated. If someone were to become incapacitated without a power of attorney for healthcare in place, the court has the power to appoint one that may or may not be an individual you intended to hold that role.

Specifically, in LGBTQ couples, this power of attorney for healthcare is just as important as the power of attorney for property since this too ensures that one partner will be able to handle the other partner’s healthcare if needed.

Prenuptial and Postnuptial Agreements

A prenuptial agreement, also known as a “prenup,” is a written contract that is entered into by two soon-to-be spouses prior to their marriage. The prenuptial agreement defines the rights and interests of both parties in the event of the dissolution of the marriage or the death of a party. This agreement becomes enforceable upon the date of marriage of the two parties.

Similarly, a postnuptial agreement, also known as a “postnup,” is a contract that is entered into by two legally married parties during their marriage to define various rights in the event of a dissolution of marriage or death. This is a way to determine the marital property rights of both parties.

Understanding LGBTQ Divorce

The law has now made it clear that individuals of the same sex have a fundamental right to marry in all 50 states. Although heterosexual and homosexual divorce are the same from a legal standpoint, there are often much different. Thus, having an attorney who is sensitive and has a strong understanding of the law to effectively help a client to obtain a successful divorce in either a heterosexual or homosexual relationship. We strive to support our clients in their concerns revolving around divorce-related matters such as the division of property, child custody, and marital support.

Some key issues in LGBTQ divorce are…

Child Custody & Support

Although married parents are both presumed to be parents from birth that occurred during the marriage, a second-parent adoption may still be necessary in many cases to fully secure the child’s relationship to the non-biological parent. For LGBTQ couples, the goal for child custody is to ensure that the best interests of our client and the best interests of the child are properly considered.

As for child support, it is important that the child’s welfare is ensured in the event of a divorce therefore it is important to find a family law attorney to help you determine if child support is appropriate and if so, how much is necessary to ensure the wellbeing of the child.

Marital Support

At Davis Friedman, our knowledgeable attorneys can help to secure the best possible outcome on the issue of spousal support for you based on your family financial situation. Similar to a traditional marriage, spousal support in the dissolution of a marriage for same-sex couples depends on factors like the length of marriage, income, property owned, and whether one spouse was a homemaker.

Division of Property & Debt

When the court is determining how to properly divide property, the courts consider whether property is marital or non-marital. Once that is determined, the courts properly divide the marital property based on a variety of different factors, just as they do when dividing property of a hetero-sexual marriage.

Non-Biological Parent’s Rights

Same-sex parents may have had children brought into their family through the following ways:

  • artificial insemination
  • surrogacy
  • adoptions

Illinois law allows individual, joint or second-parent adoptions regardless of sexual orientation. In both artificial insemination and surrogacy, it is important that non-birth parents adopt their spouse’s biological children so they can become the legal second parent.

A judge should decide the same-sex allocation of parenting responsibilities based on various factors, including the child’s relationship with both parents. Our attorneys at Davis Friedman can help you with child allocation battles by advocating for your rights.

What about “second parent” adoptions?

Under Illinois law, when one member of a same-sex couple gives birth to, fathers, or adopts a child, the other member of the couple is allowed to adopt the child. This process is called second parent adoption, and is also known as same-sex parent adoption or co-parent adoption. A second parent adoption creates a legally recognized relationship between the second parent and child that includes all rights and responsibilities of any parent-child relationship. This gives the co-parent the legal guidance essential to provide appropriate parental support in addition to meeting the child’s everyday needs such as food, clothing, healthcare, and education.

The process for a second parent adoption starts with the filing of a petition with the court which also may require court appearances. The court may require home visits from social worker to verify that the home is safe and comfortable for children. Our attorneys at Davis Friedman can work with you throughout the adoption process to make sure the goals of your family are properly met.

What about grandparents’ rights?

Grandparents may be concerned about their ability to visit their grandchildren after a divorce. Grandparents may have visitation rights, but timing is a determining factor for this issue. Early action by grandparents is important because they can only intervene and seek visitation when the custody case is still going on. Grandparents can no longer seek visitation as soon as an agreement has been made on the issue of custody, or when it has been decided by the court. At Davis Freidman, if contacted in a timely manner, our skilled attorneys can help grandparents seek visitation with grandchildren in the best interests of the grandchildren.

Have questions? Contact us about working together.

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