With same sex couples now entering into civil unions in Illinois, there are established general rules of divorce previously only applied to heterosexual marriage and divorce. These are new to LGBT couples entering civil unions. They are important and everyone who plans to "tie the knot" should be aware of them.
In a divorce action, the spouses only have rights as to martial/civil union property of the couple. Marital/civil union property is any property acquired by the parties during their civil union except for property which is specifically excluded as non-martial/civil union property. The burden is on the party claiming non-civil union property to prove through clear and convincing evidence that the property falls under one of the definitions of non-marital/civil union property.
If there is a divorce, one of the couple may be entitled to maintenance (formerly known as alimony) from their civil union partner. Be aware that there are no percentage guidelines. The amount and duration of maintenance is determined based upon relevant factors including age, income and property of each party, education, length of civil union, whether the recipient's ability to earn income.
A civil partner may be entitled to child support for the children of the couple. In most cases a percentage of net income guideline child support is 20% for one child, 28% for two children, 32% for three children, 40% for four children, 45% for five children, 50% for six children.
There are also different tax considerations.
When a husband and wife transfer property between themselves, add names to real estate or bank accounts there is no taxable event. When partners in a civil union do this, there is.
The taxable event in real estate is when the other person's name is added to title of the real estate and with joint bank accounts the taxable event is when the other person withdraws the money from the account. Gift tax returns may due.
When civil union couples divorce there is no tax deduction for the payor of maintenance from one partner to the other for civil union couples. Will the IRS treat it as income to the to the recipient? Probably yes.
And when making a division of property pursuant to a divorce decree; these transfers can also be taxable. Yet transfers of property pursuant to a divorce for a husband and wife are not taxable events.