Escaping Legal Limbo: Can Illinois Residents who Entered into a Legally Recognized Same-Sex Marriage or Civil Union in Another State Dissolve their Marriage in Illinois?

Michelle R. Green, Klein, Thorpe and Jenkins, LTD.
Allen Wall, Klein, Thorpe and Jenkins, Ltd.
Jacob H. Karaca, Klein, Thorpe and Jenkins, Ltd.
Melissa Sereda, Klein, Thorpe and Jenkins, Ltd.

Abstract

Legal limbo: when a same-sex couple in a valid, legally performed marriage performed in a jurisdiction that recognizes such marriages wants to dissolve their marriage, but now lives in a jurisdiction that refuses to recognize their marriage as valid. This article explores the options available to such couples in Illinois and provides a practical roadmap for practitioners that we think provides the best chance of success for their clients seeking to dissolve a same-sex union.

While Illinois courts have not yet determined whether such a couple may lawfully dissolve their marriage in Illinois, many lessons can be gleaned from other states that have confronted the issue. New York courts have recognized same-sex marriages for the purpose of dissolution, but other states, such as Rhode Island, Pennsylvania, and Texas, have not. One crucial difference between New York and the other states is that New York’s statutes do not include a miniature Dissolution of Marriage Act (mini DOMA), while Rhode Island, Pennsylvania, and Texas do have these statutory provisions. These mini DOMAs have led judges in these states to hold that a lack of subject matter jurisdiction prevents them from considering actions for dissolution of marriage.

Illinois similarly has a statutory mini DOMA, so there is a strong possibility that an Illinois court would also find subject matter jurisdiction lacking in an action to dissolve a same-sex union. However, Illinois practitioners have a way around this conundrum. According to section 304 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA), a judge, in declaring a marriage “invalid,” may make the ruling nonretroactive. If the declaration of invalidity is nonretroactive, all the provisions in the IMDMA relating to dissolution of marriage are applicable. Therefore, a same-sex married couple residing in Illinois could achieve all the benefits of dissolution, even if they cannot achieve an actual dissolution. The applicability of this provision, however, is dependent on the discretion of the judge. It is not an ideal solution to the problem of legal limbo, but it is at least a possibility of escape.