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The State of the Union (Civil) Address

Posted by attorney Michael Craven

On June 1st Illinois' Civil Union Act took affect. Illinois joins several other states that have civil unions or similar domestic partnership laws. There are also five states, plus the District of Columbia that allow same-sex marriages. New York and Maryland recognize out of state same-sex marriages and civil unions, but they do not issue licenses within their states. As of March, 30 states had constitutional amendments banning recognition of same-sex marriages or unions. The primary purpose of Illinois' civil union law is to give same-sex couples the same rights and benefits allowed to heterosexual couples. Interestingly, Illinois' law allows heterosexual couples the option of a civil union over marriage. Thus couples in marriages, civil unions, and domestic partnerships are all treated equally under Illinois law. This equality, however, does not necessarily extend outside the state, because of the 1996 Defense of Marriage Act ("DOMA"). The Act rejects recognition of same-sex relationships under federal law, and allows individual states to refuse to recognize other states' same-sex relationships. This has major consequences for gay couples, as over a thousand federal rules, when combined with the DOMA, apply only to "spouses." Imagine two Chicago couples. One couple joined together through a civil union. The other couple got married. While the state of Illinois will give the two couples equal recognition, federal rules would mean that the two couples might have different tax filing status, federal retirement or disability benefits, social security survivor benefits, benefits from retirement plans governed by federal law, health insurance benefits, and immigration laws. The same issues come up if the couples want to split. Just like the married couple, the couple in a civil union must legally dissolve the union to split, similar to divorce. The DOMA imposes limitations here too, most importantly in the area of taxation. The married couple, during their divorce, may transfer their assets to each other without incurring a tax. Additionally, the married spouse paying maintenance (formerly known as alimony) may deduct the payments. The couple dissolving their civil union gets none of these benefits. Illinois law equates a civil union to marriage in almost every aspect except gender. But our two Illinois couples have broadly different rules when they're dealing with the federal government. Although the DOMA is presently being challenged in courts, it remains in effect and must be considered when discussing the legal implications of civil unions.

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