Same-Sex Divorce and Property Division: Dealing with Commingled Property

Same-Sex Divorce and Property Division: Dealing with Commingled Property

By: M. Scott Gordon

While marriage equality should, in theory, bring with it gay divorce equality in Chicago and throughout the state of Illinois, there are often issues that affect same-sex couples disproportionately in a divorce proceeding. One of the major concerns is the classification of separate property and marital property. As an article in Time Magazine suggests, due to the fact that same-sex couples could not legally marry in Illinois and in other states until relatively recently, many of those couples that have been together for decades may face complications when it comes time to distribute marital property should they ever divorce.

In other words, same-sex divorce can lead to this question: when a couple that could not legally marry but acquired property together before the marriage, how does that property get classified for the purposes of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/) requirements?

Divorce Equality and Same-Sex Divorce

As many Chicago residents know, same-sex marriage became legal in Illinois on June 1, 2014 (following Governor Pat Quinn signing the law on November 20, 2013). As such, same-sex couples have been able to marry for more than three years in Illinois, and shortly thereafter, gay marriage became legal nationwide following the U.S. Supreme Court decision in Obergefell v. Hodges (2015). In theory, legalizing same-sex marriage should have resulted in divorce equality, too. To be clear, it is not that the laws regarding divorce issues are written differently for same-sex couples. However, as we mentioned above, the process of divorce, particularly when it comes to financial issues, can be different as a result of so many years in which same-sex marriage was not legal.

Under the IMDMA, property distribution occurs in the same way for a heterosexual married couple that is getting divorced as for a same-sex married couple that is getting divorced. Property gets distributed according to a theory of equitable distribution, meaning that property is divided according to what is equitable or fair to the parties. There is also no distinction between same-sex couples and heterosexual couples under the law in terms of dividing marital property but excluding separate property from distribution. However, commingled property can be a unique issue for many same-sex couples in long-term relationships.

Commingled Property and Gay Divorce in the Chicago area

What do we mean when we say commingled property can present unique complications for same-sex couples who are getting divorced? First, let us explain in more detail what we mean by commingled property. Commingled property refers to property that started as separate property—property that was acquired before the marriage or was gifted as separate property to only one spouse during the marriage, for example—but may have become marital property because it was blended in some capacity with other marital property. For example, a spouse might use separate property to buy a marital home, or might deposit separate property into a marital bank account.

Why is this a particularly complex issue in gay divorce cases? In brief, since same-sex marriage has only been legal in Illinois since 2014, many same-sex married couples had been sharing their lives for decades prior. If marriage was not legal yet same-sex couples were living together as if they were spouses, how does the property get classified that they purchased together and shared? What does a court do with shared bank accounts from before the legal marriage began?

Generally speaking, courts will classify marital property and separate property based on the date of the legal marriage. In other words, property acquired before the marriage typically will be treated as separate property, and if it was commingled after the date of marriage, the court will sort it out in the same way it would for any heterosexual married couple.

Contact a Chicago Same-Sex Divorce Lawyer

If you have questions about property distribution in a gay divorce, an experienced Chicago same-sex divorce lawyer can assist you. Contact Gordon & Perlut, LLC for more information.