By: Jeffery M. Leving
Illinois Gov. Pat Quinn signs historic bill legalizing civil unions. Starting June 1st, Illinois will become the sixth state in the country to allow people of the same sex to enter into civil unions when the “Illinois Religious Freedom Protection and Civil Unions Act” goes into effect. A civil union is defined as a legal relationship between two persons, of either the same or opposite sex. Persons entering into a civil union must be unmarried, unrelated adults of any sexual orientation. With the national implications accompanying this historic legislation, the United States turns its attention to Illinois on the issues of due process, equal protection and diversity.
Civil unions will now allow same-sex couples the opportunities to access a multitude of legal rights, responsibilities, privileges, protections and benefits previously only enjoyed by married couples in Illinois. The new law grants participants in civil unions legally provided rights and responsibilities under Illinois law.
A civil union is similar to a marriage, but has unique characteristics and important differences. When the Civil Unions Act takes effect, there will be numerous legal ramifications and financial implications to navigate. Enacting civil union legislation in Illinois represents clear progress towards equality, but we must closely examine and critically analyze the new law as it is put through the test of time.
As a family law attorney, the founder of the Fatherhood Educational Institute (http://fatherhood-edu.org) and Chairman of the Illinois Council on Responsible Fatherhood (http://responsiblefatherhood.illinois.gov), I believe the legal recognition of any family unit can only benefit children. Whether a child has two mothers, two fathers, married parents or civilly united parents, this law provides pro-parent protection and support for children.
But what does this new law really mean?
Let’s highlight some differences between a civil union and a marriage, and look at some of the benefits and responsibilities that parties to a civil union will have.
The Federal Divide: Taxes, Social Security and other Federal Benefits
The Civil Unions Act, being a state law, cannot control federal benefits and rights. The Act provides a party to a civil union the same legal obligations, responsibilities, protections and benefits afforded or recognized by Illinois state law to spouses. This State law cannot go further because it cannot conflict with federal law, which does not recognize a legal relationship of this kind. An example is that a party to a civil union can file joint state tax returns, but not joint federal tax returns. Also, because Social Security is a federal program, a party to a civil union is not recognized as a person who would receive spousal benefits. Nor would a party to a civil union receive federal military veteran benefits as a spouse. Further, a party to a civil union cannot use the civil union status to gain immigration rights for a partner who is not a United States citizen.
Recognition by Other States
The other five states permitting civil unions are California, Oregon, New Jersey, Nevada, and Washington (and the District of Columbia). In addition, five other states – Iowa, Connecticut, Massachusetts, New Hampshire and Vermont – go even further by allowing for same-sex marriages. Currently in Maryland, a bill to recognize marriage for same-sex couples is being fiercely debated.
Civil unions in Illinois and other states are not recognized as marriages (although the Act provides that Illinois will recognize a civil union performed legally in another state). There are still unanswered questions whether states that do not permit civil unions will recognize Illinois civil unions.
Entering into a Civil Union
The new law provides specific requirements for obtaining a license and registering the civil union which to a great extent follow the long standing requirements of formalizing a marriage.
Medical Rights & Hospital Visitation
With the Civil Unions Act, partners can now make critical health-care decisions in Illinois. Also included are the rights to make funeral arrangements and control the disposition of remains.
The civil unions law will make it possible for automatic inheritance rights for a party to a civil union pursuant to Illinois State law when the other party dies without a will. Property and other assets would be inherited by the other party to the civil union receiving the same share that a spouse would receive. In contrast, a non-party to a civil union or a non-spouse to a marriage has no inheritance rights and would have to be written into a will to inherit.
Termination of a Civil Union
Under The Civil Unions Act, a civil union will be terminated using the same procedures that apply to marriages. Parties to a civil union can dissolve or divorce, seek to annul or ask a court to declare the union invalid or legally separate through appropriate court proceedings. Issues of custody, support of the parties to a civil union through maintenance (which used to be called “alimony”) and of their children, and property division will be governed by the same principles and procedures provided by law for marriages.
There are far too many rights and potential pitfalls to list. However, as an attorney, I would point out that the ancient evidentiary privilege that a spouse can be prohibited from testifying against the other spouse in court, unless the litigation is a proceeding by one spouse against the other, will likely apply to civil unions. Another such right would be the same right to litigate wrongful death claims by a surviving party to a civil union just as a surviving spouse has.
The passing of the Civil Unions Act in Illinois will continue the extension of same-sex relationship recognition throughout the U.S. This new Illinois law will especially have nationwide implications for states that are considering civil union-like legislation. In time we will see how this new law will shape other laws and policies throughout our country.
In conclusion, I recommend pre-civil union counseling with a skilled professional and consideration of a pre-civil union agreement before taking this step because of the unknown future implications and interpretations of this new law.
Renowned Matrimonial Attorneys Art Kallow and Leslie Arenson contributed to this article.