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Civil unions have arrived

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After years of work and countless hoursof negotiations, Gov. Pat Quinn signed into law the civil unions bill, announcing exultantly: “We believe in civil rights … civil unions … liberty and justice for all.” The law takes effect on June 1.

Regardless of your position on the matter, there is no denying that this is a significant advancement of rights and equality for gay, lesbian and transgender couples who want legal rights and protections afforded to legally married spouses.

Senate Bill 1716, the Illinois Religious Freedom Protection and Civil Unions Act, is designed to give same-sex couples the same rights and privileges of married heterosexual couples — from fair housing and employment, to the sharing of health and pension benefits, to hospital visitation and probate and property rights. These rights would extend to nonmarried heterosexual couples as well, who desire the right to make medical decisions about a partner’s medical care, visit a sick partner in the hospital and make funeral arrangements for a partner upon his or her death.

General Assembly opponents expressed concern that the civil unions bill will drastically redefine marriage, lead to legalizing same-sex marriage and negatively impact pension and health-care costs. Yes, there will be a cost associated with providing civil union partners the same legal rights and benefits provided to married couples; however, some major employers, like Barclays, Google and McDermott Will & Emery, already offer these benefits to same-sex couples.

A few have even taken steps to reimburse employees for the additional tax they must pay by adding domestic partners to their health insurance plans. Under the current tax law, spouses do not have to pay for taxes on benefits received under their spouse’s plan, but domestic partners do. Employers who really want to treat homosexuals the same as heterosexuals have begun voluntarily reimbursing or “grossing up” compensation for those employees affected by the tax. This type of initiative is designed to create fairness and equity among employees.

To that end, Senate Bill 1716 grants parties to a civil union the same legal obligations, responsibilities, protections and benefits afforded to spouses. This means the practice of family law, as well as estate planning, employee benefits, health care, insurance and tax law, is about to change radically. Divorce will not only apply to heterosexual married clients, but will extend to civil union partners.

There will be an application process, license and fee required for civil unions, akin to marriage. A proceeding for the dissolution of a civil union will be titled “In re the Civil Union of … and …” The initial pleading will be titled “Petition for Dissolution of Civil Union of … and ….” All other pleadings will be as provided in the Civil Practice Law.

The grounds for dissolution of marriage and invalidity of marriage will apply equally to civil unions.

So too, it seems, will all the rights and responsibilities concerning children, spousal support, division of property and attorney fees in Illinois. Because only a small number of states recognize civil unions, participants to a civil union cannot count on these protections outside of Illinois.

Illinois has made noticeable strides toward equality between same-sex and heterosexual unions. This new law gives same-sex partners the same rights and responsibilities as married people in Illinois regardless of “whether they derive from statute, administrative rule, policy, common law or any other source of civil or criminal law.”

However, Illinois still expressly prohibits same-sex marriages and the Illinois Uniform Premarital Agreement Act will not necessarily apply to civil unions. Accordingly, same-sex partners may wish to enter into domestic partnership or cohabitation agreements to protect and determine their rights. Salient provisions of these agreements usually include provisions concerning property, support and other rights upon dissolution of the relationship.

There is no statutory framework for drafting domestic partnership or cohabitation agreements; a model is in the works drafted by Chicago attorney Richard Wilson, based largely on the Illinois Uniform Premarital Agreement Act. To be enforceable, a cohabitation agreement must be in writing and freely and voluntarily executed. Parties may contract to almost anything so long as it is not violative of public policy and does not adversely affect child support. A cohabitation agreement would not be enforceable if it was executed under duress or coercion, is unconscionable and there was a lack of disclosure.

Lawyers and judges are wise to keep their eyes on the new laws, requirements and forms necessary to effectuate Senate Bill 1716. The Illinois Family Law Study Committee is also working to study and recommend changes to the Illinois Marriage and Dissolution of Marriage Act in light of civil unions and other policy changes over the last three decades.

It has been 30-plus years since the Illinois Marriage and Dissolution of Marriage Act was created. Clearly, the concept of family has changed, as have the rights and benefits afforded to partners — gay and straight — in a committed relationship.

Originally appeared in the April 2011 issue of Chicago Lawyer