What's the difference between dissolving a civil union and same-sex marriage?

Dissolving a Civil Union or Same-Sex Marriage

By Matt Shaw?

It's not an issue we see daily, so when it pops up, it can feel like the question we didn't expect on the bar exam. Dissolving civil unions and same-sex marriages are comparable to dissolving marriage for different sex couples, right? Yes and no.

What's the difference? Why do we have civil unions (which can include different sex couples, who chose this over a marriage)? Now, it seems like same-sex marriage is prevalent, compared to civil unions. To clarify the differences, and to understand why both exist, a very brief history reveals insight and answers.

Same-sex couples had to advocate for equal rights under stiff opposition. In 1996, the Federal Defense of Marriage Act (DOMA), adversely affected same-sex couples residing in states not recognizing same-sex marriage, even if couples had been legally married in states recognizing same-sex marriage. It also eliminated each state's requirement to recognize a same-sex marriage from another state. 28 U.S.C.A. 1738C. The federal government did not recognize the validity of the marriage. Therefore, any marital benefits linked to federal laws were denied to same-sex couples. For example, same-sex couples were prohibited from filing a federal tax return as legally married. Federal rights that may have accrued to a spouse of a different sex couple were denied to same-sex couples.

At the time, same-sex couples who wanted to legally unite, could not do so via same- sex marriage. Thus, some states began to enact civil union laws (or domestic partnership laws), affording same-sex couples the opportunity to legally unite. In fact, civil union statutes, such as in Illinois, also allow different-sex couples to legally unite in a civil union.?

Illinois recognized, and authorized, civil unions effective June 1, 2011. 750 ILCS 75/1 et seq. Many other states did not, and still do not recognize any form of civil unions or domestic partnerships. The federal government does not recognize civil unions or domestic partnerships, but only legal marriage.

DOMA was eventually held unconstitutional. United States v. Windsor, 570 U.S. 744, 133 S. Ct. 2675, 186 L. Ed. 2d 808 (2013). Thereafter, same-sex married couples were authorized to file as spouses for federal tax purposes.?

In 2014, Illinois recognized, and authorized, same-sex marriage. 750 ILCS 80/10 et seq. In 2015, the Supreme Court recognized a constitutional right to same-sex marriage. Obergefell v. Hodges, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015). Therefore, it is now recognized federally, and states are required to authorize and recognize same-sex marriage.

Illinois then passed legislation allowing civil unions to be converted into marriage (from June 1, 2014, to May 31, 2015). 750 ILCS 75/65. Now, of course, parties to a civil union may choose to get married.

As a result of varying jurisdictions and time frames for recognizing civil unions (or lack thereof), and the emergence of same-sex marriages, practitioners may be challenged with identifying the legal relationship, non-civil union (or non-marital) property, tax consequences, federally derived benefits, and related issues in dissolving the legal relationship.

Civil unions and same-sex marriages have many similarities, and some differences. Dissolution questions regarding same-sex marriages are comprehensively covered by 750 ILCS 80/10, which states that all laws of Illinois which are applicable to marriages are equally applicable to all marriage of same-sex and different-sex couples and their children.?

A same-sex married person seeking a dissolution of marriage will have the same legal options as a different-sex married person.?

A person in a civil union seeking a dissolution of civil union has most of the rights, but some fewer legal options than a legally married person.?

The brief history reveals that some couples who entered into civil unions, never converted it into a marriage, or simply chose not to marry. Because some states still do not recognize civil unions, civil union partners cannot seek a dissolution of civil union in those states. There simply is no law to be recognized, and therefore no mechanism to dissolve the civil union.

In states that recognize civil unions, those that did not convert to marriage may seek a dissolution of civil union. In Illinois, the dissolution of civil union will be treated similarly to the dissolution of marriage. However, because the federal government does not recognize civil unions, no federal benefits or corresponding federal spousal rights apply to a civil union dissolution. In a civil union, for example, there is no right to file joint federal tax returns and there are no survivor or spousal benefits regarding Social Security or other federal rights.

Civil union property is analogous to marital property. Namely, the property that accrues during the civil union shall be distributed equitably between the parties. In In re Civil Union of Hamlin and Vasconcellos, 2015 II. App. (2d) 140231, 397 Ill. Dec. 620, 42 N.E. 3d 866 (2nd District 2015), the Appellate Court recognized that civil union property began to accrue as of the effective date of the civil union, which happened to be 2002 (in Vermont). That Civil Union property accrued even prior to Illinois recognizing the legality of civil unions in 2011. Therefore, it is important for the practitioner to recognize that the civil union date, no matter where legally entered into, is the operative date for when civil union property begins to accrue. Note that the date civil union property began to accrue was years prior to Illinois authorizing and recognizing civil unions.

Conversely, as a practice note, it is not uncommon to see a civil union couple, or samesex couple who have been together for 25 years but have been in a civil union only since 2011, or a same-sex marriage since 2014. Property, including retirement benefits accruing prior to the establishment of the legal relationship, plus, the growth thereon, is non-civil union, or nonmarital, property. 750 ILCS 5/503(a)(7).

Illinois cases have clarified some related issues. For example, a civil union partner does qualify as a step-parent pursuant to the definition in the Illinois Marriage and Dissolution of Marriage Act, and can take visitation and allocation of parental responsibilities for a child after the civil union partner's death. Sharpe v. Westmoreland, 2020 IL 124863, 2020 WL 5668973 (ILL. 2020).

Civil union partners, and sometimes same-sex spouses, are surprised that the maintenance laws found in the Illinois Marriage and Dissolution of Marriage Act, are applicable. Therefore, if you are advising persons who wish to enter into a civil union, or same-sex marriage, provide information and options on pre-nuptial agreements, and civil union or marriage planning.

For tax planning and estate planning, as well as the transfer of real estate, contact an expert as these issues can be more complex than typical advice for a legal marriage.?

The history of civil unions and same-sex marriages is much more in-depth than outlined in this article, but this synopsis may enhance our understanding of why, how, and when they evolved, and why the rights to each are similar, but decidedly different. Being aware of the similarities and differences is critical.

[email protected]

www.shawsanders.com

(630) 584-5550