The Illinois Religious Freedom Protection and Civil Union Act is a short statute that creates a “civil union,” which is not a marriage in Illinois, but a status that is very much like a marriage. The statute makes no reference to gender, and in fact, opposite-sex couples can also obtain a civil union. The benefits of a civil union are like those of a marriage, and the requirements for obtaining one are few. So, if a civil union confers all of the benefits of marriage, the question (at least in our practice) then becomes:how do you dissolve one? Do you get a divorce? Well, no. But you must enter into a process very much like a divorce:a dissolution of a civil union. Just as in a marriage, parties to a civil union can move to dissolve the union in Illinois, or in another statute with the express consent of the jurisdiction of Illinois courts. And the procedure is generally the same. The process is started with an action entitled “In re the Civil Union of ___ and ___.”
There are few differences between a dissolution of a civil union and a divorce; one issue is federal taxes. It is well-settled that the division of the marital estate incident to a divorce is not taxable to either party. However, the Defense of Marriage Act (1996) prohibits the recognition of same-sex marriage under federal law by defining marriage as between a husband and a wife. Further the DOMA allows states to enact legislation specifically denouncing same-sex marriages from other states.
So what does this mean? Well, federal law is, obviously, far-reaching. Recent estimates state that over 1,138 federal rules or benefits use the word “spouse.” A Guide to the New Civil Union Law, Richard A. Wilson, IBJ May 2011.
Therefore, upon a dissolution of a civil union, the “divorce is not a taxable event” rule under federal law does not apply. And under the Illinois Marriage and Dissolution of Marriage Act, maintenance is taxable to the payee under Illinois and Federal law. But this benefit is not available to the payor of spousal support pursuant to a Judgment for Dissolution of a Civil Union.
And, one more issue when dealing with a dissolution of a civil union should be mentioned:children. If parties to a civil union choose to have a child, by any means, the question of parentage remains unclear. Thus, it is wise to consult an attorney and obtain a determination of parentage in order to protect both parents’ rights.
