This series of articles will discuss three of the most substantive changes in the law seen in over 35 years: The Civil Union Act, the Transfer on Death Instrument Act and the new Power of Attorney Act.
Divorce has been described as the great benefit of the Civil Union Act. Divorce provides property rights and a legal fix for the mistakes that people make in creating their relationships.
In the world of heterosexual marriage there is an established history of divorce terms, broad experience with breakup rights and duties that are different from the rules that LGBT couples have lived by. It seems that every divorce client I have ever had already knows the trials and tribulations of a friend's divorce, the property settlement they got, what their lawyer could or could not do for them. Unfortunately, these rules are new to LGBT couples entering civil unions. They are important and everyone who plans to "tie the knot" should be aware of them.
First, if you want to break up — divorce — you need a reason. You need "grounds" for divorce such as adultery, mental cruelty and physical cruelty which are commonly used. Couples, however, can stipulate to a reason to satisfy the separation requirement. There is also irreconcilable differences which requires a two-year separation of the couple or six months separation if the parties waive the two years. Parties, however, can be separated within the same home.
Second, the. conduct of the parties is not to be determined in the resolution of financial issues. This means if your wife is out cheating on you with the other moms from the PTO, you are not entitled to receive more of a property settlement. However, if funds arc expended for purposes unrelated to the union (typically, an extra civil union relationship), such expenditures are dissipation of the couple's assets and can be assessed against the spouse who has spent the funds.
Finally, Illinois is an equitable distribution state which means property is not necessarily divided equally or 50/50 — there is no guarantee you will get half. The Court considers relevant factors in determining how assets are to be divided, such as length of the union, age, health and employability of the spouses, contribution, both financial and non-financial, to the acquisition of property.
Next week: More on marital/union property.
