THE ILLINOIS CIVIL UNION ACT

1. THE ILLINOIS CIVIL UNION ACT Christopher Clark Senior Staff Attorney Lambda Legal Defense and Education Fund and Rosemary Mulryan Mulryan & York October 7, 2011 2011 Illinois Legal Aid Advocates Conference

2. 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

3. 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 by Governor Pat Quinn (January 31, 2011) • Went into effect June 1, 2011

4. 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

5. 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

6. 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

7. How to Enter into a Civil Union • 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 • County Clerk issues a license and a certificate • One day waiting period before the license becomes effective, and it remains effective for 60 days • 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 • Certificate and license must come from the clerk’s office in the county in which the certification/solemnization ceremony is performed

8. 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.

9. 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

10. 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

11. 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

12. 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

13. 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?

14. 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

15. 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 • Advice – Be Proactive and Err on the Side of Caution

16. 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

17. 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”

18. 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!