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Work through this checklist and you'll have a solid foundation for building your business. An opposite-sex couple generally has two choices — they may marry and become husband and wife, or they may not. Either way, their rights and responsibilities under state and federal law are generally well defined. Instead of marrying and becoming husband and wife, they may enter into a civil union and be treated the same as husband and wife.
The Civil Union Act defines the rights and responsibilities of civil union partners under state law, but the rights and responsibilities of opposite-sex civil union partners under federal law are anything but clear. The Civil Union Act. The Civil Union Act, which becomes effective June 1, , allows two individuals — of the same sex or opposite sexes — to enter into a civil union, with exceptions for underage persons, relatives, and certain others.
Individuals who want to join together in an Illinois civil union will need to apply for a certification from the county clerk, and the union can be dissolved only though a process similar to a marriage dissolution. The Civil Union Act provides that civil union partners are to have "obligations, responsibilities, protections, and benefits as are afforded or recognized by the law of Illinois to spouses.
It is a clear goal of the law to recognize a state law equivalent of marriage for a same-sex couple. But the law also encompasses opposite-sex couples, and not unintentionally. The likely intent is to allow a marriage equivalent for opposite-sex couples for state law purposes, without the real or perceived federal law "penalties" associated with married status — such as potentially negative federal income tax or Social Security consequences.
However, does the Civil Union Act accomplish that goal for an opposite-sex couple? This is an interpretational issue for both federal governmental agencies and employers. Several other states recognize opposite-sex non-marriage relationships aside from common-law marriage. This article refers only to opposite-sex civil unions in Illinois and discusses some of the issues that may arise under federal income tax and Social Security laws, and with respect to benefit plans covering opposite-sex civil union partners, in Illinois. A same-sex civil union in Illinois would not be considered a marriage under DOMA, and the civil union partners would not be spouses for purposes of any federal law or any ERISA-covered employee benefit plan.
That is clear.
However, what about an opposite-sex civil union in Illinois? A civil union in Illinois is a "legal union," and references to "spouse" and "husband" and "wife" in Illinois law encompass the civil union partners — one man and one woman. On its face, it would appear that a civil union between an opposite-sex couple in Illinois does or at least may constitute a marriage under DOMA, and thus is or at least may be recognized as a marriage under federal law.
But does that mean that all federal law must recognize opposite-sex unmarried spouses in Illinois as married? DOMA likely is not intended to define marriage for all federal law purposes but to serve to limit the reach of other definitions of marriage contained in federal law. The interpretational difference is as follows:. If DOMA defines marriage for all federal law purposes, then "marriage" is any legal union between one man and one woman as husband and wife — potentially including unmarried opposite-sex civil union partners in Illinois;.
If DOMA merely limits the scope of other definitions, then wherever "marriage" is defined in federal law, that definition cannot be read to extend beyond a legal union between one man and one woman as husband and wife but the definition can be narrower. While the former reading allows for one consistent level of interpretation of marriage in all federal laws, it probably is not a correct reading. It is therefore necessary to analyze each relevant provision of federal law to determine who is considered to be "married," or which individuals are considered to be "spouses" or something similar , for purposes of that particular law.
Even if you don't have capacity to marry at the point that you start living with someone, you can still end up in a common law marriage. This could happen if you or your partner get a divorce with a former spouse while you're living together in a common law marriage state; or you move in with someone who's married, and their spouse dies while you're living with them.
In both cases, you lacked the capacity to marry at the time you moved in with your partner, but gained the capacity back through the divorce or death of your spouse. Once established, a common law marriage is just as valid and binding as a formalized marriage. It lasts until a court grants a divorce or one partner dies. If your partner and presumptive spouse dies before you've legally established your common law marriage, you'll have to prove your marriage to be able to inherit and receive insurance benefits, Social Security Survivor's Benefits or pension benefits.
Generally speaking, the strongest evidence that both partners intended to be married would be a written agreement between them to that effect. Ultimately, however, you only know for sure that a common law marriage exists when a judge says so. Here are some factors that a court would look at to determine if you are or were in a common marriage:. If you and your long-term partner are living together but not married, you may have some questions about the legal implications of your relationship including the meaning of "common law marriage" in your state. Since everyone's situation is different, you could benefit from speaking with an attorney.