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THE ILLINOIS CIVIL UNION ACT
Christopher Clark
Senior Staff Attorney
Lambda Legal Defense and Education Fund
and
Rosemary Mulryan
Mulryan & York
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October 7, 2011
2011 Illinois Legal Aid Advocates Conference
The National Landscape
Marriage Equality – MA, IA, CT, NH, VT, DC and NY
Comprehensive Relationship Recognition (Civil Union or
Domestic Partnership) – IL, CA, HI, OR, WA, NV, NJ, ME,
DE (after January 1, 2012)
Limited Relationship Recognition – CO, WI
Recognition of Out-Of-State Same-Sex Marriages – NY,
MD, RI
Majority of States still deny any recognition of same-sex
relationships
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Overview of Illinois Civil Unions
The
Illinois Religious Freedom and Civil Union Act
Passed
by both Houses of the Illinois Legislature
(November 30/December 1, 2010)
Signed
Went
by Governor Pat Quinn (January 31, 2011)
into effect June 1, 2011
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Terms of the Civil Unions Act
Purpose of the Act: “The Act is to be liberally construed to
promote its underlying purposes, which are to provide adequate
procedures for the certification and registration of a civil union and
provide persons entering into a civil union with the obligations,
responsibilities, protections, and benefits afforded or recognized by
the law to spouses.” Section 5
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Terms (cont.)
Section 20: A party to a civil union is entitled to the same legal
obligations, responsibilities, protections, and benefits as are
afforded or recognized by the law of Illinois to spouses, whether
they derive from statute, administrative rule, policy, common law, or
any other source of civil criminal law
Party to a Civil Union: Included in the definition of the terms
Spouse
Family
Immediate Family
Dependent
Next of Kin
Any other terms that denote a spousal relationship, as those
terms are used throughout the law
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Who Can Enter Into a Civil Union?
Section 25 – Qualifications and Restrictions of Civil Unions
Available to Same-Sex or Different-Sex Couples
Both partners must be at least 18 years of age
Neither partner may currently be in a marriage, civil union or
substantially similar legal relationship
Partners may not be closely related to one another by blood or
adoption
Civil unions between first cousins, aunts/uncles and
nieces/nephews, siblings – all prohibited by Section 25
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How to Enter into a Civil Union
1. Both parties must appear in person at the County Clerk’s office to fill
out an application for a civil union license
Costs of application should range between $15 - $40
Form of identification – either a birth certificate, driver’s license or passport
If either party has been previously married or in a civil union, bring proof of
divorce or dissolution decree or death certificate of former partner
2. County Clerk issues a license and a certificate
3. One day waiting period before the license becomes effective, and it
remains effective for 60 days
4. Civil union must then be “certified”/”solemnized” and certificate
returned by the officiant to the county clerk’s office within 10 days of
the ceremony
Same people who solemnize marriages (clergy and judges) may certify
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Certificate
and license must come from the clerk’s office in the county in
which the certification/solemnization ceremony is performed
Couples Married in Other States
Illinois will recognize any relationship substantially similar to
marriage as an Illinois civil union
Includes all same-sex marriages, civil unions, or relationships
substantially similar to marriage entered into legally in other
jurisdictions and states
When the law went into effect on June 1, 2011, the law in Illinois
automatically treated them as civil unions
NO ADDITIONAL STEPS REQUIRED
Ex: Couple married in Iowa is automatically treated as a civil union
in Illinois – no paperwork or certificates needed
Wisconsin domestic partnerships do not qualify as they are not
“substantially similar” to marriage.
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Family Law Rights and Obligations
Duties of joint financial support and liability for family debts
Step-parent and joint adoption procedures
Ability to become jointly licensed as foster parents
Legal presumption of parentage for any child born into a civil union
Protections of domestic violence, crime victim, and crisis assistance
laws
Enforcement of pre-civil union agreements on the same terms as
pre-nuptial agreements of opposite-sex couples
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Medical and Death-Related Rights
Hospital visitation rights, medical decision-making rights, and
authority to receive information regarding medical condition or
treatment
Authorization of anatomical gifts, autopsy and release of medical
records
Ability to make funeral arrangements for a deceased partner
Right to seek money damages for a partner’s wrongful death
Right to inherit in the absence of a will, and certain financial
protections while an estate is being settled
Certain employment-related spousal benefits for insurance for
public employees
N.B. - Benefits will be taxable under federal law as income for
the employee
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Other Rights and Responsibilities
Holding real property in “tenancy in the entirety” (protection against
creditors)
Workplace benefits, especially for public employees
Right to a pension for surviving civil union partner of fire fighter
or police officer
Equal treatment as spouses under state insurance laws
Right to not testify against a civil union partner
Right of incarcerated person to call critically ill civil union partner
Veterans’ benefits available to spouses under certain state laws
Unclear as to whether there is a right to state tax exemption
regarding value of partner health insurance
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Intersection with Federal Law
Civil Union partners do not get any of the rights and benefits of
marriage under federal law
Social Security spousal survivor’s benefits
No ability to file jointly on federal tax returns for same-sex
couples
Taxed on value of same-sex partner’s insurance
Spousal protections in bankruptcy proceedings
Authority to sponsor a spouse to immigrate
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Intersection with Federal Law
DOMA, §3: “In determining the meaning of any Act of Congress, or
of any ruling, regulation, or interpretation of the various
administrative bureaus and agencies of the United States, 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.”
Obama Administration Changes– Justice Department’s recent
position regarding DOMA’s Defense
Effects of DOMA’s Downfall?
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Why Not Enter a Civil Union?
If either or both do not want the rights and responsibilities that
come with civil unions
Some states do not approve adoptions by same-sex couples or
unmarried different-sex couples
If either partner depends on public assistance
If either partner is a foreign national without permanent U.S. status
If either or both are concerned with the continuing uncertainty
surrounding federal recognition and rights
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Legal Precautions for Partners
While Illinois recognizes rights and responsibilities, many states do
not
Same-sex couples should continue to draw up legal documents
required for protecting their rights
Health Care Power of Attorney for medical decisions outside of
Illinois
Adoption proceedings for non-biological parent of child born into
a same-sex civil union
Wills and trust and estate documents
Civil union certificates are not judgments for purposes of Full Faith
and Credit Clause
Allows many states to ignore the rights afforded same-sex couples
under Illinois Civil Union Act
Advice14– Be Proactive and Err on the Side of Caution
Dissolution of Civil Unions
Same process used by opposite-sex couples for divorce
File a petition for dissolution with a domestic relations court
Caption of the court petition would read “In re the Civil Union of ___
and ___...”
Civil union partners eligible for maintenance
Same rights regarding parental visitation, child support, and division
of property as spouses
Procedure is the same for couples that entered into civil union or
marriages in other jurisdictions and states
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Summary of Emerging Issues
Provision of employee benefits
State tax issues, including joint filing and taxation of employee
benefits
Discrimination issues raised by hostility to same-sex couples and
civil unions.
Spousal presumption of parentage
Dissolution issues, including division of “marital assets”
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Next Steps
Illinois Civil Union Tracker
Forum for civil union partners to share their experiences
Also a place for couples to ask questions or seek advice
regarding any problems/difficulties regarding the union process
Monitor implementation issues
Continue Fighting for Full Equality!
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