Archive for the ‘Same Sex Couples’ Category

Top Child Issues That Same-Sex Couples Should Consider

April 9th, 2015 at 7:30 pm

same-sex couples, same-sex rights, Illinois Family Lawyer

Before becoming a parent, it is important that you understand all potential legal issues  that could affect your family in the future. This is true for individuals in same- and opposite-sex relationships. For individuals in same-sex relationships, though, there are certain additional issues to consider.

Because both partners in a same-sex relationship cannot be their child’s biological parents, many of the potential issues for same-sex parents are related to the legal status of the child’s non-biological parent. When an individual gives birth to or fathers a child, he or she is typically presumed to be the child’s legal parent. His or her partner, however, must petition the court to formally adopt the child in order to have the same legal rights to the child as the biological parent.

Consult with an experienced family attorney before you and your partner adopt or conceive a child. He or she will be able to guide you through the process of establishing yourselves as your child’s legal parents and protecting your rights in the future, should your relationship end through divorce or death.

Adoption

Many individuals in same-sex relationships become parents through adoption, either through an agency or private adoption, the use of a surrogate, or through a second-parent adoption. A second-parent adoption means that one partner legally adopts his or her partner’s biological child, which officially provides the adoptive parent the same legal rights as the biological parent

In Illinois, same-sex couples are permitted to jointly adopt children from agencies and through private adoptions. An individual may petition to adopt his or her partner’s child or a child conceived during the couple’s relationship with help from a sperm donor or a surrogate. Individuals of all sexual orientations are also permitted to adopt children as single parents.

Second Parent’s Rights after a Divorce

If one of the partners in a relationship is not the child’s legal parent, he or she may face difficulties when trying to establish a custody agreement or visitation rights after a divorce or a break up. This is why it is so important for the non-biological parent in a same-sex couple to legally adopt the couple’s child. If he or she does not do this, it may be impossible for him or her to create a functional custody or support agreement.

For an individual who is not a child’s parent to seek and receive custody of him or her, the child must not be living with either of his or her actual parents. Both parents, if the child has two legal parents, must also have voluntarily ceased to care for the child and the individual who is seeking custody must have a significant history of caring for this child. These requirements are known as “standing,” which is the legal right an individual has to pursue a court case.

If a same-sex couple was married, he or she may have standing to seek custody as a stepparent. However, this is only permitted under very specific circumstances.  Specifically, if the child’s former custodial parent dies or becomes disabled and can not care for the child, the child’s stepparent may seek custody of the child if the following conditions exist:

  • The child is 12 years old or older;
  • The stepparent and the child’s parent were married for at least five years;
  • The stepparent played a considerable role in caring for the child prior to filing his or her petition;
  • The child wants to live with the stepparent; and
  • The court determines that visitation is in the child’s best interest.

Family Attorneys in the Chicago Area

As a prospective or current parent in a same-sex relationship, it is important that you understand all the legal issues that could affect your family. Contact Anderson & Associates, P.C. at 312-345-9999 or on the web to discuss any pertinent issues with one of the experienced Chicago family attorneys at our firm. We proudly serve and advocate for parents and families throughout the Chicago area, with offices in downtown Chicago, Orland Park, Wheaton, Northbrook, and Schaumburg.

United States Supreme Court Will Hear Same Sex Marriage Case

February 2nd, 2015 at 1:04 pm

Supreme Court same sex marriage case, Chicago family lawyerOn January 16, 2015 the Supreme Court of the United States agreed to hear a case that will determine whether the Constitution requires states to issue marriage licenses to same sex couples and recognize same sex marriages that were performed in other states.  Specifically, the Supreme Court will review the decision of the United States Court of Appeals for the Sixth Circuit, which upheld the states’ right to prohibit same sex marriages.  The Supreme Court has consolidated four cases, one from each state in the Circuit, each of which raise a different issue facing same sex couples who do not have the right to marry.

The Plaintiffs’ Challenges

One case was filed by April DeBoer and Jayne Rowse, a lesbian couple who live in Michigan.  They are raising three children together, two of whom were adopted by Rowse and one who was adopted by DeBoer.  The couple cannot adopt the children together, as Michigan law prohibits joint adoptions by unmarried couples.  Among the couple’s concerns is what would happen to the children if one of them were to pass away as there is no guarantee that the children would remain with the other parent (and their siblings) unless a legal relationship is established.

Similarly, Valeria Tanco and Sophy Jesty are asking for Tennessee to recognize their marriage, which was performed in New York, in part to establish their parenting rights.  Tanco and Jesty are unique in that their daughter has Jesty listed as her “father” on her birth certificate.  Depending on the outcome of the case, the birth certificate may be voided and reissued without listing Jesty as a parent. The case was joined by three other couples who were also married in jurisdictions that recognize same sex marriage and are seeking legal recognition of the marriages in their home state.

Ohio’s case involves two couples seeking to have their out-of-state marriages recognized so they can enforce their rights upon the death of one of the partners.  James Obergefell and John Arthur were married in Maryland after Arthur was diagnosed with Lou Gehrig’s disease.  The couple wanted to be buried next to each other in Arthur’s family plot, but the cemetery only allowed decedents and spouses.  Their suit was joined by David Michener and William Herbert Ives, a gay couple who wanted Michener to be listed as a spouse on Ives’ death certificate, and Robert Grunn, a funeral director looking to protect his right to recognize same sex marriages on death certificates.

Lastly, the challenge from Kentucky was brought by four couples that were married outside of Kentucky in jurisdictions where same sex marriage is legal. The couples are seeking to have Kentucky recognize their marriages and afford them the advantages that heterosexual married couples enjoy in Kentucky, such as tax benefits, intestate succession, and the ability to enroll jointly in health insurance along with their children. 

The Sixth Circuit’s Majority and Dissenting Opinions

Three Sixth Circuit Judges heard arguments regarding all four cases.  In a 2-1 decision, Judge Cook and Judge Sutton voted to overturn the lower court decisions, all of which ruled in favor of the same sex couples, while Judge Daughtery dissented.

The majority opinion notes that all four states passed constitutional amendments since 2004 that defined marriage as a relationship between a man and a woman.  All of the amendments were approved by a majority of voters in the state, and the court believes that the voting electorate should be able to decide how marriage is defined.  In addition, the states were able to put forth a rational basis for limiting marriage to heterosexual couples: to create stable family units for planned and unplanned procreation and child rearing.  The majority explains that this idea is also supported by the “traditional” definition of marriage.  The majority concludes its opinion by cautioning against rash action by the courts and advocates for allowing the democratic process time to resolve the conflict between states that allow same sex marriage and states that do not.

Judge Daughtery’s opinion, on the other hand, asserts that marriage is a fundamental right and that the states have failed to present a reasonable justification for withholding that right from same sex couples.  The dissent explains that there are several issues that confront the plaintiffs and same sex couples across the country because they are denied access to marriage.  The dissent rejects the procreation and child rearing argument accepted by the majority, pointing out that it is not supported by the studies presented in the lower court.  Judge Daughtery also points out that judicial intervention was necessary to stop racial discrimination and therefore is also appropriate to prevent discrimination based on sexual orientation.  In her view, the court is responsible for protecting individuals’ fundamental rights, even if it is not supported by popular opinion.

How the Supreme Court’s Decision Could Affect Illinois

Unlike the states in the Sixth Circuit, in 2014 Illinois passed the Religious Freedom and Marriage Fairness Act which provides same sex couples with equal access to marriage and all of the benefits that state law provides to married couples.  Even if Illinois had not passed the legislation, later in 2014 the United States Court of Appeals for the Seventh Circuit (the Circuit that includes Illinois) invalidated state prohibitions of same sex marriage.  In addition, the Supreme Court’s decision in United States v. Windsor extended the benefits afforded to married couples under federal laws to same sex spouses.  Therefore, Illinois same sex couples are legally given the same treatment as heterosexual couples so long as they stay in Illinois.

However, if a same sex couple marries in Illinois, there is no guarantee that their marriage will be recognized in other states.  This can have an impact not only on where the couple decides to live, but also travels for work or vacation.  The Supreme Court’s upcoming decision will determine whether valid same sex marriages performed in Illinois (and other states that allow same sex marriage) must be recognized by all other states, whether or not that state allows same sex marriage.

If you have questions regarding your rights as a same sex couple in Illinois, contact an Chicago family law attorney at Anderson & Associates, P.C.  Our attorneys have the knowledge and compassion to represent your best interests.  Call us today at 312-345-9999 to set up a free initial consultation in our Chicago, Schaumburg, Wheaton, Orland Park, or Northbrook offices.


This article was written by attorney Christin A. Handa of Anderson & Associates, P.C. Ms. Handa is a licensed attorney focusing in the areas of Family Law in Cook County and surrounding collar counties. Her practice primarily includes Divorce, Custody, Child Support, Visitation, Alimony & Spousal Support, Paternity (Parentage), and Domestic Violence/Orders of Protection.

A Premarital Option for Gay Couples Contemplating Marriage

January 29th, 2015 at 2:36 pm

premarital option for gay couples, Chicago family law attorneysThe United States Supreme Court recently granted certiorari in four same-sex marriage cases. The Court will decide whether it is unconstitutional for states to ban same-sex marriage, and whether the Constitution requires states to recognize same-sex marriages performed elsewhere.

Currently, a majority of states permit same-sex marriage, including Illinois. (Illinois’ marriage equality law took effect on June 1, 2014.)

Gay couples have the right to marry in Illinois–and the right to divorce. For that reason, gay couples, like straight couples, may want to consider their options for mitigating the consequences of marriage dissolution. One of these options is a premarital agreement, which is a written contract outlining how marital assets will be divided if the marriage ends in divorce (or legal separation).

Executing a Premarital Agreement

The agreement must be written and signed by both spouses. The contract is not valid if either party was coerced, or if evidence exists of duress or fraud. If the couple wishes to revoke or amend the agreement, which is enacted upon marriage, they must voluntarily sign a separate agreement expressing those changes.

A basic prenuptial agreement includes information pertaining to:

  • Marital assets, which is generally property that the couple acquires during marriage;
  • Non-marital assets, which is includes property only one spouse possessed before the marriage;
  • How marital and non-marital property will be divided in the event of a divorce;
  • Whether or not each party should write a will reflecting the terms of the premarital agreement;
  • A party’s responsibility to make maintenance payments (alimony); and
  • The party’s choice of law to govern how the agreement will be interpreted (e.g., does Illinois law or another state’s law apply).

While the agreement may address maintenance, the court does not have to accept the parties’ terms on this issue under certain conditions. For example, if the parties agreed to eliminate alimony, but one party would suffer undue hardship due to unforeseen circumstances, the court may require the other party to make payments.

Executing a Postmarital Agreement

If you opted against a premarital agreement, it is not too late to define each spouse’s financial rights and responsibilities. A couple can achieve similar results by entering into a postmarital agreement after they marry. A postmarital agreement must also be in writing and voluntarily signed by both parties.

Marriage is stressful enough without having to contemplate what might happen in the event of divorce. If you are considering a premarital (or postmarital) agreement, contact one of our Illinois family law attorneys today at (312) 345-9999. The law firm of Anderson & Associates, P.C. will help you execute a valid contract with beneficial terms. We can assist clients from our Illinois offices located in Schaumburg, Wheaton, Northbrook, Orland Park, and downtown Chicago.