- Forming a Civil Union
- Your Rights In a Civil Union
- Dissolving a Civil Union
- Impact on Domestic Partnerships
- Civil Unions and Prenuptial Agreements
- How We Can Help
Governor Pat Quinn signed the Illinois Religious Freedom Protection and Civil Union Act (SB1716) which will become effective June 1, 2011. We thought it might be useful to talk about what the Act means, from the perspective of a family law firm.
Forming A Civil Union
What Is a Civil Union?
In Illinois, a civil union is a legal status afforded to a couple of the same or opposite sex that grants the couple all the rights, interests, benefits, and burdens afforded to spouses under Illinois law. The same restrictions that apply to marriage also apply to civil unions (no family, minors, or people already married or in civil unions). Couples may dissolve a civil union by the same means as a married couple dissolves a marriage (pursuant to Illinois Marriage and Dissolution of Marriage Act).
How Do I Form a Civil Union?
While it is still unclear, it is unlikely that the law will provide for any “quickie” civil unions. Forming a civil union requires the couple to jump through some hoops.
First, the couple must get an application for a civil union license. The county clerk will have these forms readily available, by June 1, 2011, start date.
The couple must appear together before the county clerk with their completed application, pay the applicable fees, give proof of identification, and sign an affidavit stating that the civil union is not prohibited (no family, minors, or people already married). As soon as the county clerk is satisfied that all these criteria have been met, the county clerk will issue a license and certificate to form a civil union.
A license for a civil union is effective on the next day after being issued by the county clerk and expires sixty days later. This means that the couple will have sixty days to form a civil union.
The officiant presiding over the formation of the civil union (ceremonies are not required) will fill out the certificate of civil union and return it to the county clerk within ten days of presiding over the civil union formation.
The final step in the process of legalizing a civil union occurs when a certificate of civil union is delivered to the county clerk who then forwards a copy to the Illinois Department of Public Health. At this point, the civil union is formally recognized and the couple can request copies of the certificate from the county clerk.
What Ceremony is Required?
Couples seeking civil unions get to have a ceremony, similar to a wedding, and the law provides for as much. Importantly, if the couple decides to have a ceremony, similar to a marriage, the certificate of civil union would be certified by the officiant. Anyone qualified to certify a marriage certificate can certify a civil union. In other words:
Section 40. Certification. A civil union may be certified: by a judge of a court of record; by a retired judge of a court of record, unless the retired judge was removed from office by the Judicial Inquiry Board, except that a retired judge shall not receive any compensation from the State, a county, or any unit of local government in return for the solemnization of a civil union and there shall be no effect upon any pension benefits conferred by the Judges Retirement System of Illinois; by a judge of the Court of Claims; by a county clerk in counties having 2,000,000 or more inhabitants; by a public official whose powers include solemnization of marriages; or in accordance with the prescriptions of any religious denomination, Indian Nation or Tribe or Native Group, provided that when such prescriptions require an officiant, the officiant be in good standing with his or her religious denomination, Indian Nation or Tribe or Native Group. The person performing a civil union shall complete the certificate and forward it to the county clerk within 10 days after a civil union.
Your Rights In A Civil Union
What Rights Do I Get In a Civil Union?
A civil union will give a couple all of the same rights and protections afforded to a married couple. The list is long and varied, but it includes:
(1) The right to acquire property by tenants in the entirety (allowing each party to own an undivided interest in a piece of real estate).
(2) The right to have access to your partner during medical emergencies.
(3) The right to make medical decisions for your partner.
(4) The right of to inherit an automobile.
(5) The rights afforded to spouses under state-sponsored or administered health care benefits.
(6) The rights afforded to spouses in court, such as the right to be free from compelled testimony against your partner.
Importantly, the statute states that couples in a civil union have all of the same “obligations, responsibilities, protections, and benefits afforded or recognized by the law of Illinois to spouses.”
What’s Missing From a Civil Union?
A civil union is definitely not the same as a marriage and carries with it some important limitations, such as the following:
(1) Civil Unions Aren’t Recognized by the Federal Government. The Defense of Marriage Act enacted by Congress in 1996 “prohibits same-sex couples from receiving federal marriage rights and benefits, such as the right to file joint tax returns.” As we stated previously, couples in a civil union can still file joint state tax returns. Additionally, federal health benefit plans will not recognize civil unions formed in Illinois. The Defense of Marriage Act is a sweeping piece of legislation and effectively prohibits any federal recognition of the rights granted under state same-sex marriage and civil union laws.
(2) DOMA’s Effect on Dissolution. Under federal and state law, property divided in the event of a divorce is not taxable to either party. However, the Defense of Marriage Act prohibits the recognition of same-sex marriages or civil unions. Accordingly, property divided in the event of a dissolution of a civil union is federally taxable. Further, maintenance in a dissolution of marriage can be taxable to the payee and tax deductible by the payor. However, the Defense of Marriage Act will prevent a payor of maintenance from claiming a federal tax deduction if his or her obligation arose out of a dissolution of a civil union.
(3) Civil unions are not recognized by all states. Consequently, a civil union in Illinois won’t convey any rights to a couple in, for example, South Carolina.
Dissolving A Civil Union
To end or dissolve a civil union, a couple must rely on the same law that a married couple relies on to dissolve their marriage; they must proceed under the Illinois Marriage and Dissolution of Marriage Act. Section 45 of the Illinois Religious Freedom Protection and Civil Union Act specifically states that:
…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.
What does this mean? In short, divorcing your same-sex partner won’t be any different from divorcing your spouse. Property acquired during the course of the civil union will be divided according to the same property division laws that apply to marriages; child support and maintenance may be awarded; and any existing prenuptial agreements will control to the extent that they are applicable and enforceable.
It also means that there won’t necessarily be one set of lawyers who specialize in civil unions and another set of lawyers who specialize in family law or marriage between couples of the opposite sex. Procedurally, the dissolution of a marriage and the dissolution of a civil union will not be distinguishable. Just like the dissolution of marriage process, the dissolution of civil union process will start with a petition for dissolution and end with a judgment for dissolution.
Impact On Domestic Partnerships
Domestic partnerships have only been recognized by a few governmental entities within the State of Illinois, such as Chicago, Oak Park, and Urbana, just to name a few. While the Illinois Religious Freedom Protection and Civil Union Act does not interfere with the right to enter into domestic partnerships, it surely does not encourage them either. Domestic partnerships have typically offered partners few legal protections and have not been recognized by the State of Illinois. With the passage of the Illinois Religious Freedom Protection and Civil Union Act, in the future domestic partnerships will be a less attractive option than the more comprehensive civil union.
Civil Unions and Prenuptial Agreements
What is a Prenuptial Agreement?
A prenuptial agreement allows for an efficient distribution of marital and non-marital assets in the unfortunate event of divorce or death. It is helpful to think of prenuptial agreements like health insurance. Just as buying health insurance does not indicate that a person expects to become ill, entering into a prenuptial agreement does not indicate that a person expects their marriage to fail. Like health insurance, a prenuptial agreement signifies that, should an unfortunate event occur, the parties are prepared and have planned to protect themselves from further harm.
Division of property is often the most expensive part of any marital dissolution. A prenuptial agreement allows parties to decide ahead of time how their assets (whether acquired before or during marriage) will be distributed and will protect the parties’ much needed resources as they transition into separate homes. A prenuptial agreement is not only for affluent individuals; it’s a valuable device for anyone who would rather spend a little money now as a preventive measure to potentially save thousands of dollars in future attorneys’ fees.
It is important to understand that a prenuptial agreement is not an admission that you have doubts about your civil union. Rather, it’s simply an opportunity for couples contemplating a civil union to have an open and honest discussion about their current finances and their goals for the future, and to eliminate the financial uncertainty of divorce.
How Do I Form a Prenuptial Agreement?
Since the civil union act has not gone into effect, Illinois courts have not had an opportunity to rule on the formation of prenuptial agreements for civil unions. However, the Illinois Religious Freedom Protection and Civil Union Act explicitly grants couples joined by a civil union with the same rights as those afforded to spouses under Illinois law. Accordingly, prenuptial agreements for couples forming a civil union will proceed under existing law.
(1). Financial Disclosure. Illinois courts require full disclosure of each party’s property and financial obligations. The mandatory disclosure allows each party to make an informed decision regarding the property rights they are relinquishing in the event of divorce. In many instances, property acquired after the date of marriage or civil union will be considered marital property, subject to division upon divorce. This includes savings and pensions, as well as business ventures and physical property. Additionally, any debts or liabilities incurred during the course of the marriage may be subject to division between the parties. By sharing all relevant information, and by encouraging a frank discussion of each party’s financial expectations, Illinois law ensures that both parties enter into a prenuptial agreement, and their marriage or civil union, fully aware of each other’s finances.
(2). Enforceability. The courts will not enforce a prenuptial agreement without carefully scrutinizing the terms and taking into consideration events that could not have been foreseen at the time the parties entered into the agreement. This is a case-by-case analysis, but the Illinois Uniform Premarital Agreement Act specifically addresses one of the most common scenarios: maintenance (formerly known as alimony). Section 7 states “(b) If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement undue hardship in light of circumstances not reasonably foreseeable at the time of the execution of the agreement, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid hardship.” (750 ILCS 10/7). Similarly, contractual agreements that are unconscionable will be struck down by the Court.
What Does a Prenuptial Agreement Cover?
Prenuptial agreements allow parties to create a binding contract that provides for a predetermined allocation of all forms of property, either presently held or acquired in the future, including, but not limited to: real estate, vacation homes, rental properties, time-shares and personal property such as: interests in and ownership of small businesses, employment income, investment income, savings accounts, certificates of deposit, investment accounts, stocks, bonds, pensions, 401(k), 403(b), deferred compensation plans, etc. Additionally, prenuptial agreements can assign one party the right to buy, sell, mortgage, encumber, or otherwise dispose of property. Therefore, in the event of divorce, the property owned by each party retains its liquidity and the party seeking to make financial decisions will not have to wait for a court order which takes times and could end up costing the parties money in court fees, market fluctuations, or lost opportunity costs.
Aside from property allocation, described above, a prenuptial agreement allows parties to contract with respect to:
(1) The elimination or modification of spousal support (subject to the discussion above);
(2) The ownership rights in and distribution of life insurance proceeds;
(3) The choice of law governing construction of the agreement; and
(4) Any other matter that does not violate public policy or criminal statute.
It is important to note that parties cannot contract with respect to the right of a parent to receive child support from the other parent for the benefit of a child in the event of divorce. Also, parties cannot contract as to custody because all custody determinations are based upon the best interests of the child[ren] at the time of divorce.
How We Can Help
We at Lyn C. Conniff Law Offices are excited that Illinois has passed the Religious Freedom Protection and Civil Union Act and are happy to answer any questions you may have. In the event that you are interested in learning more about prenuptial agreements or post-nuptial agreements, please do not hesitate to contact our office. Likewise, if there is anything we can do to assist you during the course of your civil union, please let us know. We pride ourselves on providing the best information on our blog and website and hope that these resources may be of use. If you would like to set up a consultation, please visit our contact page.