Last June, Illinois law officially changed to allow same-sex couples to enter into full marriages. While this was a momentous occasion for many, it also opened up same-sex couples to the possibility of having to deal with a formal legal divorce down the road. Although the divorce laws apply to same-sex marriages the same way that they do to heterosexual marriages, there are a variety of practical differences that certain same-sex couples should consider. One of these issues comes up in the context of property division. Many same-sex couples cohabited in long-term, committed relationships that were not legally recognized marriages prior to the enactment of the new law. Those preexisting relationships can make distinguishing marital property from non-marital property more difficult.

Property Division Rules in General

In broad strokes, Illinois' property division rule is that the courts divide marital property equitably, and leave non-marital property untouched. However, that requires courts to determine what pieces of property qualify as marital versus non-marital. Marital property is almost anything that a spouse acquires during the marriage. The exceptions to this are things like gifts to one spouse or inheritances that a spouse receives.

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While marriage is still a major cultural institution, shifting attitudes have led to a rise in unmarried couples living together. Some of these couples see marriage on the horizon, but others do not feel the need to formalize their relationship through ceremony. In fact, the 2010 Census showed a 13 percent increase in unmarried cohabitation between 2009 and 2010 alone. Unfortunately, Illinois law has yet to catch up with these changing attitudes. The state does not recognize common law marriage or other similar default property rights. This can be a problem when couples split up or when one of them passes. Fortunately, the law does still provide some options for proactive couples. Couples can enter into cohabitation agreements that mark out specific rights that they want the government to recognize. Additionally, there are special options in cases where the couples choose to purchase a house together.

Cohabitation Agreements

Cohabitation agreements are useful for solving two problems that unmarried couples may have when living together. They provide clarity in cases where the couple ends up separating, and they provide clarity in cases where one member of the couple passes on. In cases where the couple ends up separating, the cohabitation agreement can help determine who gets which property, rather than simply relying on the property rules that ordinarily affect individuals. Similarly, cohabitation agreements can also apportion responsibility for debts between the couple, as opposed to simply burdening the person who actually took out the debt.

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One of the key portions of any divorce proceeding is the determination of spousal support, also referred to as alimony. This is the money that one former spouse pays to the other to support them as they transition back to their single life. The current system of calculating spousal support is based on a wide array of factors, including things like both spouses' incomes and property, the spouses' needs and earning capacities, the standard of living that occurred during the marriage, and the duration of the marriage. This has led to spousal support amounts being somewhat unpredictable at times.

Now, a new bill that is currently awaiting the governor's signature plans to reform that. The bill will not remove those factors from play entirely, but it will provide more concrete guidelines for judges to follow. The bill adds a new method of calculating support terms and the amount of time that the supporting spouse will be required to pay support, which will now be based on the length of the marriage. Additionally, the bill provides more strict mathematical formulas for calculating the amount of spousal support that a person will owe.

New Support Terms

The first set of guidelines that the law creates are a set of support terms. These are suggested periods for which supporting spouses must pay alimony, based on the length of the marriage. The new law applies a simple mathematical formula to calculate the support term. The judge multiplies the length of the marriage by a specific factor that changes based on the length of the marriage, as shown in the table below.

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One of the main focuses of the divorce process is the division of the marital assets between the spouses. This requires the court, through the spouses and their attorneys, to take a thorough accounting of all of the marriage’s property. This can tempt some spouses to hide away assets for themselves rather than revealing them for division. Because the concealment of marital assets can be a problem, people going through a divorce should be aware of the different strategies others can use to hide assets, as well as how to spot them.

The strategies for concealing assets fall into two major groups: expense manipulation, making it look like more money is coming out than actually is, and income manipulation, making it look like less money is coming in than actually is. The prior post in this series covered some common expense manipulation strategies. This post will focus on the other type of concealment: income manipulation.

Income Manipulation Strategies

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In November, Illinois Governor Pat Quinn signed family law legislation allowing same-sex couples to marry beginning in June. The bill passed the Illinois House early in a November by an extremely thin margin.  The law needed 60 votes to pass and received 61.

The law, though passed a few weeks ago, cannot take effect immediately in Illinois due to the state constitution. All legislation passed after May 31st in any year cannot take effect until after June 1st the following year without a three-fifths majority vote in each chamber (instead of the typical one-half).

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