Pre-Marital Division of Assets and Maintenance in Same-Sex Divorce is not commonly searched topic, but the consequences of not understanding these issues can be devastating for those impacted by it.
How Is Pre-Marital Division of Assets and Maintenance in Same-Sex Divorce?
Same-sex couples going through divorce in Illinois may encounter unique complications when it comes to dividing assets and determining spousal support. One of the biggest factors influencing these decisions is how long the marriage is legally recognized to have lasted.
Although same-sex marriage is now legal statewide, time spent living together before marriage became legal isn’t counted when the court calculates the duration of the marriage for property or maintenance purposes.
This legal limitation can create serious financial consequences — especially for individuals who supported their partner or made personal financial sacrifices during years of cohabitation before their relationship had legal status.
Knowing how Illinois law addresses these issues is essential. Working with an attorney who understands the legal history and how it affects your rights can help you minimize potentially harsh financial outcomes during divorce.
Legal History Impacting Same-Sex Pre-Marital Property Division and Maintenance
In 2013, the Defense of Marriage Act (DOMA) was partially struck down by the Supreme Court Of The United States (SCOTUS).
In 2014, same-sex marriage became legal in Illinois.
In 2015, the SCOTUS legalized same-sex marriage in Obergefell v. Hodges, declaring that the same-sex couples have a guaranteed right to marry under the Fourteenth Amendment to the United States Constitution.
The SCOTUS decision in Obergefell v. Hodges abolished all state laws prohibiting same-sex marriage and required states to allow same-sex marriage as well as recognize same-sex marriages that occurred in other states.
Before these law changes, same-sex couples may have:
Had a civil union or domestic partnership
- Been married in another state or country
- Lived together in a marriage-like relationship before Illinois recognized it
Why this matters:
Courts must decide: Should the marriage start from the legal marriage date or the earlier relationship?
Possible solution:
Apply equitable principles to recognize de facto marital relationships for purposes of dividing assets.
Does Illinois Recognize Equitable Principles or De Facto Marriages?
While Illinois does not recognize de facto marriages, courts may consider equitable principles like:
- Unjust enrichment
- Constructive trusts
- Implied contracts (e.g., oral agreements to share property)
These doctrines may provide limited relief in disputes over property acquired during a long-term same-sex relationship before marriage was legally available, but they do not create marital rights.
Illinois courts have consistently refused to treat non-marital cohabitation — same-sex or opposite-sex — as giving rise to marital rights.
Pivotal Decision By Illinois Supreme Court
In 2016, the Illinois Supreme Court made a pivotal decision in the same-sex divorce case of Blumenthal v. Brewer.
The case started in 2010 between two prominent women who were domestic partners since 1981. Dr. Jane Blumenthal sought to split the proceeds of their residence, which the two women legally owned together.
Her former partner, Judge Eileen Brewer, filed a counterclaim seeking restitution of the money that Blumenthal took from the couple’s joint bank account to purchase a medical practice.
Blumenthal’s subsequent income from her medical practice allowed Brewer to concentrate on raising the couple’s children at the expense of Brewer’s earning potential, which as a judge was substantial.
The case was decided differently in the trial court, appellate court, and then received a final decision in 2016 by the Illinois Supreme Court in favor of Blumenthal.
When the case started in 2010, Illinois did not allow same-sex marriage. However, despite the 2014 change in the Illinois state law allowing same-sex marriage and the 2015 national change required by the SCOTUS, the Illinois Supreme Court in Blumenthal v. Brewer prohibited the recognition of rights based on nonmarital cohabitation.
The Illinois Supreme Court’s rejection of Brewer’s claim for equitable division of property between same-sex partners who were never married was unexpected for some people.
The Court cited public policy under the Illinois Marriage and Dissolution of Marriage Act (IMDMA), emphasizing that courts should not mimic marriage-like remedies outside of marriage.
The decision was consistent with the IMDMA and the longstanding law of the land in Illinois that denies all nonmarried cohabitating couples equitable division of property regardless of whether the couple is homosexual or heterosexual.
Protecting Your Financial Future
The issues involved with Pre-Marital Division of Assets and Maintenance in Same-Sex Divorce require planning and wisdom to minimize financial consequences.
If you’re in a same-sex marriage facing divorce in Illinois, the divorce lawyers at Koth Gregory & Nieminski are here to support you.
Contact Our Office Today
You can call or schedule an appointment with our divorce lawyers in Bloomington IL today through our online calendar.
Published: August 7, 2025
Disclaimer:
The intent of this Article (Pre-Marital Division of Assets and Maintenance in Same-Sex Divorce) is to provide general information. It should not be construed as legal advice. The Law Firm of Koth, Gregory & Nieminski, P.C. (KGN) does not represent or guarantee that the information in this Article is current.
The information is provided as is without any representation or warranty as to whether the information is current, applicability, reliability, merchantability, fitness, non-infringement, result, or any other matter. The existence of the Article, receipt of its information, and/or comments/questions do NOT create an attorney-client relationship between KGN or any of its attorneys.
Please do not send KGN any confidential material or information. Viewers of this Article should NOT act/refrain from acting based on information contained in this Article and KGN expressly disclaims all liability for actions/failures to act based on this Article.