Illinois Same-Sex Divorce and Property Distribution

With the recent passage and enactment of the Illinois Religious Freedom Protection and Civil Union Act, the state of Illinois now recognizes the right of any two individuals to enter into a marriage-like legal relationship. While many couples celebrated this step in LGBT rights by solemnizing their previously unrecognized relationships, some unhappy same-sex couples, finally provided with a legal remedy, sought to end relationships entered into elsewhere.

Under the Illinois Religious Freedom Protection and Civil Union Act, parties to a civil union are "entitled to the same legal obligations, responsibilities, protections, and benefits as are afforded or recognized by the law of Illinois to spouses, whether they derive from statute, administrative rule, policy, common law, or any other source of civil or criminal law." 750 ILCS 75/20. In addition, the act specifically provides that, regarding dissolution or declaration of invalidity, the Illinois Marriage and Dissolution of Marriage Act (IMDMA) will apply. 750 ILCS 75/45. Considering these provisions, it appears there is no practical difference between a civil union and a traditional marriage in Illinois, whether at its creation, while it remains intact, or at its dissolution. There are, of course, significant differences between the rights afforded to same-sex couples and opposite-sex couples on the Federal level.

Despite the similarities between Illinois's treatment of civil unions and traditional marriage, certain complex questions will inevitably arise when courts begin to dissolve same-sex civil unions. Because many of the relationships being solemnized as civil unions have already been intact for periods of many years, the disposition of property will likely be a topic of debate.

Illinois has long taken the stance that unmarried cohabitants, no matter the length or nature of their relationship, incur neither the rights nor the responsibilities of married individuals. See Hewitt v. Hewitt, 394 N.E.2d 1204, (Il. S. Ct. 1979). Where an unmarried man and woman lived together for fifteen years and had three children, the Court refused the woman any remedy when they separated, even though her former partner had promised to "share his life, his future, his earnings and his property" with her, and assured her that they were husband and wife, even without a formal ceremony. Id. at 1205. Her claims of joint property ownership, implied contract, trust resulting from fraud, and estoppel due to reasonable reliance were all rejected because the couple never underwent the formalities of marriage. Id. The legislative intent behind the IMDMA is to provide procedures for the solemnization of marriage and to strengthen and preserve marriage and families, which led the Court to declare it contrary to public policy to recognize marital-type property rights between non-married cohabitants. Id at 1209. This policy sees continued support in Illinois courts, including as recently as 2006. See e.g. Costa v. Oliven, 365 Ill.App.3d 244 (Ill. App. 2d Dist. 2006).

Imagine the following situation: in 1982, after dating for four years, John and Tyler moved in with one another. They intended to be committed to one another for the rest of their lives and began to share their assets. In 1984, Tyler stopped working, and the two lived off John's significant salary. In 1990, John purchased a home in his name, but made it clear that it was for their family, and both men treated it as such; Tyler did the cleaning and home repairs, as well helping significantly with numerous remodeling efforts. On June 1, 2011, the couple entered into a civil union. How will the property be distributed if they divorce in 2012?

Looking first at current law, any property acquired by either party during their civil union will be the equivalent of marital property, "union property" for these purposes, and would accordingly be subject to equitable distribution. 750 ILCS 5/503(a). Among other factors, the court may look at the contributions of each party to the marital estate and the value of each party's non-marital property when dividing marital property. 750 ILCS 5/503(d). In this case, John's non-marital estate would be significant, so the court could, in theory, award Tyler much of the marital estate, small though it may be.

This, however, does not address the question of the house. Because it was acquired before the civil union, it is presumptively non-union property. 750 ILCS 5/503(a). When an estate or a spouse contributes funds or personal effort to non-marital property, that estate or spouse is entitled to reimbursement from the benefiting estate. 750 ILCS 5/503(d); see e.g. In re Marriage of Thornton, 486 N.E.2d 1288, 1296 (Ill. App. 1st Dist. 1985). In this case, Tyler contributed significant personal effort to the couple's home, but they were not in a legally recognized relationship until 2011. Certainly he is entitled to reimbursement for his contributions during their civil union, but Hewitt and the underlying policy suggest that, because their relationship prior to June 1, 2011 was meretricious in the eyes of the law, Tyler is entitled to nothing for his pre-union efforts.

Should the result here be nearly complete denial of property rights between partners who, but for its illegality, would have entered into a state recognized relationship almost thirty years ago? After all, this is not the case of the Hewitts, who could have married but didn't. If the courts do find that this is the wrong result and opt for a more equitable route, what route will they take? Will they go to the time of cohabitation? Of sharing of financial assets? Will they subjectively test the parties' intent, likely to lead to extensive litigation, or will there be a bright-line test? Or, will the courts simply follow the Hewitt trend and deny pre-union property rights altogether?

Considering the wide discretion of Illinois domestic relations courts, we are left with more questions than answers. In the ensuing months and years, as more and more courts hear more and more of these issues, the picture will become clearer, and same-sex couples, and their attorneys, will be better able to predict the outcomes of their divorces.