Civil Union Laws Illinois

Family Law

A Guide to the New Illinois Civil Union Law

By

Richard A. Wilson

Beginning June 1, the Illinois Religious Freedom Protection and Civil Union Act confers most of the rights of marriage on parties to a civil union. But definitions of "spouse" and "marriage" under federal law impose important limits on the new act, requiring special planning for "civilly unioned" couples.

Don't miss the ISBA's upcoming Law Ed programs on Civil Unions!

Friday, June 3 "Civil Union Practice Tips" Attend live onsite or via live webcast during CLE Fest Classic - 4 hours MCLE credit
Friday, June 17 "A Roadmap to the Illinois Civil Union Act" during the ISBA Annual meeting - 2 hours MCLE credit

The recently enacted and soon-to-be effective Illinois Religious Freedom Protection and Civil Union Act¹ (the "act" or the "Civil Union Act") is a relatively short, relatively simple, and exceptionally comprehensive piece of legislation that creates a status analogous and equal to marriage under Illinois law - without regard to gender - conferring all the rights, interests, benefits and burdens available to spouses without, or short of, marriage itself.
It's called a "civil union." Implicitly promising equality as a matter of state law, under the new act two persons - of either the same or opposite gender and both at least 18 years of age - may elect to enter into a civil union rather than a marriage. And those who do - as well as those who are already married, civilly unioned or united,² domestically partnered or in some analogous status conferred by the laws of another state or country - will be entitled to all of the recognitions and benefits available under Illinois law to spouses, including that which is arguably the most important if and when the time comes: divorce.
A close reading of the new act reveals that, as to both policy and formation, it is nearly identical to the existing Illinois Marriage and Dissolution of Marriage Act (IMDMA)³ (with few relatively inconsequential exceptions discussed below) and, as to dissolution in appropriate instances, expressly incorporates applicable provisions of the IMDMA. If, as is widely assumed, the primary intent of the new law is to provide same-sex couples with the same rights and benefits afforded to opposite-sex couples under the state's laws,⁴ it has accomplished just that.
In each "stage" of a civil union - formation, recognition while intact, and dissolution - the procedure by which it is obtained, maintained, and dissolved, including the substantive rights, benefits, and duties and obligations of the parties, differs little from that provided by Illinois law to parties to a marriage. As a matter of statutory construction, there isn't much the act does that the IMDMA doesn't do for those who are able to marry under Illinois law. There appear to be only two differences - one of which is an inherent and likely intended consequence of the new law, and the other an extraneous and unavoidable one, whether contemplated or not.
The first is marriage itself. By creating a separate status equivalent or equal in nearly all respects to marriage, the act nonetheless is separate, and is not and does not provide for marriage, which remains available under Illinois law solely to persons of the opposite sex.⁵
The second is the pervasive and likely inescapable reach of federal law, specifically, the Defense of Marriage Act ("DOMA").⁶ The DOMA limits the application of the new act in significant ways, both by restricting the use and definition of "spouse" under federal law to two persons of the opposite sex and by permitting states to refuse to recognize same-sex marriages from other states. This produces a conflict between state and federal law where benefits, rights and interests of spouses - in areas such as taxation, social security, retirement or health care benefits from employer plans governed by federal law, immigration benefits, and the like - depend upon the marital relationship, the federal designation of spouse, or both.
This article examines the new law, which takes effect June 1, 2011,⁷ in both contexts: first, its structural elements and application as a matter of state law, using marriage and dissolution (the IMDMA) as the measure; and second, the inherent conflicts or limitations in its application in all respects, specifically the unavoidable and significant impact of federal law on the union both while intact and upon dissolution.
This article considers both questions in the context of each of the three aspects of the legal relationship critical to the practitioner: The nuts and bolts of formation of a civil union; the rights, interests, and obligations of a couple who has obtained a valid civil union or a relationship entitled to reciprocal recognition; and a practical guide to dissolution.

An overview of the Civil Union Act

Generally. The Civil Union Act consists of 14 sections ranging from formalities of creation, rights and protections in recognition, and dissolution. Three provisions of the act are particularly significant.
First is the equation - or elevation - of a party to a civil union to the equiva­lent status of spouse "entitled to the same legal obligations, responsibilities, protections, and benefits as are afforded or recognized by the law of Illinois to spouses…"⁸ in section 20. Second is the incorporation of the IMDMA for purposes of dissolution or declaration of invalidity of a civil union, in section 45. Third is the reciprocity provision, section 60, which recognizes same-sex relationships, "legally entered into" in other jurisdictions, that are "substantially similar" to a civil union in Illinois.
Formation. Assuming the parties meet the age threshold of 18 and the union is not otherwise prohibited, the manner in which a civil union is obtained or entered into is, as a matter of law, no different from a marriage. A civil union may be performed (solemnized and "certified") by the same specified officials permitted to do so under the IMDMA⁹ - a judge in most instances, and in others, a county clerk or other officiant permitted by law.¹⁰
One difference between IMDMA and the civil union law is found at section 35 of the act ("Duties of the county clerk"), which enumerates duties and obligations of the clerk that are to be adhered to after application. Sub-paragraphs (b) and (c) of section 35 are pro forma and consistent with similar provisions for registration of a marriage under the IMDMA.¹¹ The other two, however - subparagraphs (a) and (d) - have no parallel provision in the IMDMA.
The first, subparagraph (a), is not otherwise explained in the act or elsewhere, and requires that

[(a)] [b]efore issuing a civil union license to a person the county clerk shall satisfy himself or herself by requiring affidavits or otherwise that the person is not prohibited from entering into a civil union or substantially similar legal relationship by the laws of the jurisdiction where he or she resides.¹²

This provision places a duty on the county clerk to determine the legal sufficiency of another jurisdiction's "substantially similar legal relationship." This may or may not be as simple as the similar duty of a clerk issuing a marriage license under the IMDMA, where he or she must obtain "satisfactory proof that the marriage is not prohibited."¹³ The last, subparagraph (d), makes it a "petty offense" for "any official" who "issu[es] a license with knowledge that the parties are thus prohibited from entering into a civil union."¹⁴
The act contains no other requirements for formation of a civil union.
Recognition. A civil union obtained in Illinois under the act, as well as any "marriage between persons of the same sex, a civil union, or substantially similar legal relationship other than common law marriage, legally entered into in another jurisdiction" are to be recognized as civil unions in Illinois.¹⁵ Because legal rights are implicated both in the pursuit of recognition for the relationship while intact - or for benefits based upon the status of the relationship - and also in the pursuit of rights and remedies by the parties against one another, or by third parties, upon dissolution¹⁶ and, frankly, because not all relationships end in dissolution, it is important to consider the rights and interests of the parties to a civil union in the relationship while it is intact.
To obtain reciprocal recognition, parties to valid same-sex marriages, civil unions, or "substantially similar legal relationship[s] other than a common law marriage, legally entered into in another jurisdiction" need do nothing further under Illinois law. In fact, they are prohibited from obtaining a civil union under the new act.¹⁷ There is no legal requirement for a party to a foreign, recognized relationship to take any affirmative act in Illinois to have that relationship formally certified, recognized, or otherwise acknowledged.
Specific rights and protections of recognition are not enumerated in the new act. Neither are they found, for the most part, in the comparable provisions of the IMDMA. The act accomplishes its provision of rights and interests by equating, without exception, the status of "party to a civil union" to a spouse under Illinois law.
Any plain reading of the act leads to the conclusion that it enables parties to a civil union to claim a right or interest wherever the word "spouse" or similar marital partner designation appears in Illinois law. This arguably includes, to name but a few, the right to acquire and own property jointly¹⁸ - including tenancy by the entireties - the right of access to and to make decisions on behalf of the other spouse in medical contexts, rights to automatic inheritance, rights as a spouse to state-sponsored (non-federal) or administered health care benefits, and rights to spousal privileges in court including the freedom from compelled testimony.
It also applies to the presumption of parentage and right to recognition of a child as a child of the civil union to both parties jointly, along with other rights, benefits, protections, and burdens both while the relationship is intact and on dissolution, including division of the estate, spousal support, and contribution to fees.¹⁹
Dissolution. As with marriage, the legal rights and interests to parties to a civil union will be determined mostly in dissolution. With the enactment of the act, couples who obtain a civil union in Illinois will be able to dissolve it in Illinois - or elsewhere, by express consent to the jurisdiction of Illinois courts under section 45 (see below) - and same-sex couples from other jurisdictions who can establish residency in Illinois may now obtain a dissolution of their marriage, civil union, domestic partnership or similarly recognized legal relationship.²⁰ This single change in the law provides for the first time the right to divorce otherwise available to all who marry, along with the attendant right to equitable division of property without regard to title.
The undoing of a civil union is, as with marriage under Illinois law, accomplished either by dissolution or a declaration of invalidity. Both are provided for under section 45, which states in full as follows:

Section 45. Dissolution; declaration of invalidity. Any person who enters into a civil union in Illinois consents to the jurisdiction of the courts of Illinois for the purpose of any action relating to the civil union even if one or both parties cease to reside in this State.²¹ A court shall enter a judgment of dissolution of a civil union if at the time the action is commenced it meets the grounds for dissolution set forth in Section 401 of the Illinois Marriage and Dissolution of Marriage Act. The provisions of Sections 401 through 413 of the Illinois Marriage and Dissolution of Marriage Act shall apply to a dissolution of a civil union. The provisions of Sections 301 through 306 of the Illinois Marriage and Dissolution of Marriage Act shall apply to the declaration of invalidity of a civil union.²²

The act provides for the same procedural steps to obtain a dissolution of a civil union as a divorce. Process and procedure are governed by both the Illinois Civil Practice Act, incorporated into the new act in section 50,²³ and the IMDMA.
The only apparent difference is the name of the action: i.e., "[a] proceeding for dissolution of a civil union or declaration of invalidity of a civil union shall be entitled 'In re the Civil Union of … and …'."²⁴ As with marriage under the IMDMA, the act provides that "[t]he initial pleading in all proceedings under this Act shall be denominated a petition. A responsive pleading shall be denominated a response. All other pleadings under this Act shall be denominated as provided in the Civil Practice Law."²⁵
Although it isn't mentioned in the act, a dissolution will likely be known as a "Judgment for Dissolution of Civil Union," much like its counterpart, a "Judgment for Dissolution of Marriage."
Because Illinois law previously would not²⁶ permit residents of the same sex to marry,²⁷ recognize their relationships if they chose to do so elsewhere,²⁸ or recognize same-sex relationships from other jurisdictions,²⁹ Illinoisans in failed same-sex relationships legally entered into in other jurisdictions were left with few legal protections and difficult choices. Even if they amicably parted, they could not obtain a "dissolution" or "divorce" and lacked a forum before which they could have all of their rights and interests - to property and to children - adjudicated.
A simple example of the benefit of the new law in this context is division of property. Since the reform of Illinois' marriage laws in the 1970s, the law moved from dissolution and the apportionment of marital property based upon fault to equitable division without regard to fault or, for the most part, relative financial contribution.
Thus, for example, under the IMDMA, property acquired after the date of the marriage is presumed to be marital property³⁰ and vests in the marital estate upon the commencement of dissolution proceedings,³¹ without regard to title.³² Upon dissolution, all marital property is equitably divided between the parties, without regard to who acquired it or in whose name title is held, with few exceptions.³³ Under the act, parties to a dissolution of a civil union are now entitled to the same treatment.³⁴

Conflicts with other jurisdictions

Other states. But for the reservation of "marriage" to persons of the opposite sex, the only limitations of the new Illinois law will be in its application. This arises on two levels. The first is where the status is not recognized by another state or similar governmental entity (a typical example being the assertion of spousal rights in another jurisdiction while, for example, traveling). The second is where the fundamental status - "spouse" under Illinois law - itself is wholly at odds with the definition of "spouse" under federal law, limiting rights and interests to a party to a civil union in federal benefits and obligations, and creating a conflict between state and federal law based solely upon gender.
The new act expressly provides in section 45 that "[a]ny person who enters into a civil union in Illinois consents to the jurisdiction of the courts of Illinois for the purpose of any action relating to the civil union even if one or both parties cease to reside in this State." This provision will allow parties access to Illinois courts for the purposes of dissolving their civil union should they live in a jurisdiction where they could not otherwise do so.
Beyond that, Illinois law does little if anything to address the refusal of other jurisdictions, in particular the federal government, to recognize its grant of a civil union. Thus, to be truly protected, clients need to continue securing rights to inheritance through powers of attorney, wills, and trusts; to children through legally recognized parentage independent of the relationship (e.g., adoption or surrogacy); and to property by title. The piecemeal pursuit of securing of rights will and must continue until and unless uniform recognition occurs.
The Defense of Marriage Act. Enacted in 1996, the Defense of Marriage Act was the federal government's first enactment of substantive law pertaining to marriage, which had historically been (and continues to be) otherwise a matter of state law.³⁵ The DOMA contains two provisions. The first prohibits the recognition of same-sex relationships under federal law, where it expressly provides that "the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."³⁶ The second permits states to refuse to recognize same-sex relationships from other states.³⁷
The impact on same-sex couples is profound. Recent estimates have concluded that over 1,138 federal rules and benefits use the term "spouse."³⁸ Federal law governs everything from tax filing status (and calculation of tax rates and amounts, where state tax filings are derivative of federal return) to benefits for spouses based upon retirement or disability, or, in the context of employment, health insurance where an insured employee must pay taxes on the coverage of his or her spouse.
Thus, where the DOMA expressly limits federal recognition and provision of such benefits as a matter of federal law to "spouses," none of these benefits is available to same-sex spouses legally married or in valid, recognized same-sex relationships under state law or the laws of other jurisdictions. Under the DOMA, married same-sex couples, or those in civil unions, may also not avail themselves of, e.g., immigration sponsorship available to married Americans with foreign spouses, social security survivor benefits, or benefits from pensions or retirement plans governed by federal law.
Federal employees are not entitled to spousal benefits where the spouse does not meet the definition of the DOMA. The provision of domestic partner or spousal benefits not recognized under federal law results in taxation to the employee, which is not taxable to employees who have opposite sex spouses.
Finally and importantly, the long-established rule is that the division of the marital estate incident to a divorce is not taxable to either party.³⁹ But the DOMA will not allow such a benefit to same-sex couples upon dissolution. The same is true of maintenance and spousal support, both taxable to the payee under Illinois and federal law, allowing the payor to declare a deduction. Consequently, practitioners should be aware that parties to a civil union will be entitled to maintenance but will have unequal tax treatment under federal law.

Parentage and the Civil Unions Act

Like the IMDMA, the new act makes no specific provision for parentage. Obviously, one need not be married to be a parent.
There are two important points here for parties to a civil union. First, in Illinois - as in all states - a child born to a married couple is presumed to be a child of the marriage⁴⁰ and each party to the marriage is presumed to be a parent. Otherwise, parentage must be established by such means as adoption⁴¹ or surrogacy.⁴²
Second, Illinois does not recognize claims of intended parentage, including claims of de facto or psychological parentage.⁴³ Only a parent may legally act on a child's behalf, and only a parent has standing to bring or maintain an action for custody, control, education, support,⁴⁴ or indeed any action of any kind pertaining to a child against an existing, present parent.⁴⁵
Given the open questions of recognition both within the state and (because of DOMA) beyond, you should advise a client who is a party to a civil union to obtain a determination of parentage as to any child of the relationship in any case.⁴⁶ This is most easily accomplished by adoption.

Conclusion

The new Illinois Civil Union Act grants same sex couples the legal right to the full benefit of Illinois law available to spouses in the recognition, protection, and where necessary, dissolution of their relationships without regard to gender of the parties or whether or not either resides in Illinois.⁴⁷ For purposes of state law, a civil union is equal to marriage in nearly every respect but for gender.
Parties to a civil union enjoy the same legal protections, benefits, and burdens the state affords to married spouses - both while their relationship is intact and, as importantly, if and when it dissolves.⁴⁸
Traditional legal advocacy on behalf of same-sex couples has included sophisticated estate planning and other legal constructs to secure rights and interests to property and to children by and between unmarried persons. After the law takes effect, the legal emphasis will shift. Parties will need advice about how to protect their rights in light of both the new state law and the limitations imposed by federal law, particularly DOMA. At presstime, challenges to DOMA were pending in three U.S. circuit courts,⁴⁹ and the Obama Administration has announced that it will no longer defend - but will continue to enforce - section 3 of DOMA.⁵⁰ Nonetheless, the law remains effective and must be taken into account.

Richard A. Wilson <rwilson@grundlaw.com> is a founding member and past-chair of the Illinois State Bar Association's Standing Committee on Sexual Orientation and Gender Identity (SOGI), and a partner at Grund & Leavitt PC in Chicago, concentrating on litigation and appellate practice relating to domestic relations law, with particular emphasis on same-sex issues. He thanks Adam C. Kibort, an associate at Grund & Leavitt, for his invaluable assistance and advice.