Until 2011, Illinois viewed same-sex relationships as “against public policy” and refused to recognize any same-sex civil union or marriage. However, many Illinois residents traveled to progressive jurisdictions in order to enter into legal samesex relationships. Afterwards, they returned to their lives in Illinois and lived together as married couples despite Illinois’ lack of recognition.
When Illinois legalized same-sex civil unions in 2011 and same-sex marriages in 2014, it immediately flipped a switch and began retroactively recognizing same-sex relationships entered into in other jurisdictions. While this prevents same-sex couples from being forced to jump through hoops to re-legalize their relationships, it also presents a problem: When did these happy couples begin acquiring marital property? This question becomes extremely important when they are no longer a happy couple. In Illinois, all property acquired after a marriage is presumed to be marital property and is subject to equitable distribution upon the disillusion of marriage. Illinois could retroactively find that the couple began acquiring marital property the moment they entered into their relationship outside of Illinois despite the fact that Illinois did not recognize the marriage and the marriage had no legal effect. On the other hand, Illinois could start the marital property clock on the moment the same-sex legislation became effective even though the couples intended for their relationship to be binding and held themselves out to that effect. This article discusses the advantages and disadvantages of each point of view and analyzes the effects of each approach.
Eric J. Shinabarger,
Back to the Future: How Illinois' Legalization of Same-Sex Relationships Retroactively Affects Marital Property Rights,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol90/iss1/13