Some Legal Issues

D-I-V-0-R-C-E: A Serious Reality For TGs

By Carolyn Woodward
Attorney-at-Law


I was reflecting the other day on the number of married, or once married, transgendered friends and acquaintances I have who have not gotten a divorce over the issue, and I find the list is very small. In our community the issue of divorce rears its ugly head altogether too often, so I felt it might be appropriate to touch on some of the issues involved a transgendered divorce. Keep in mind, please, that this is not a comprehensive guide, and that I am licensed to practice in California - for those of you elsewhere, I will be speaking in very general terms based upon what I have been able to glean from case summaries.

The first issue, at least for the cross-dresser who is completely closeted, or who goes out but still endeavors to keep her activities secret from the world at large, is whether the world has to know because of the divorce. The answer is not necessarily, and may depend on whether you have children, where you live, and whether you want to contest the divorce. Those who are completely public about it, live full time, or are transititoning prepratory to surgery don't have to worry about being exposed, but may have to worry about the children.

Divorce In A "No-Fault" State and Elsewhere

Those who live in a "no-fault" state such as California and have no children can probably keep their secret safe from the world.

California has only two grounds for divorce and they are irreconcilable differences or incurable insanity. Those who think the second applies please put your hands down.

Incurable insanity requires a medical opinion that the spouse will be institutionalized for life. That leaves irreconcilable differences. This covers anything which has caused the marriage to deteriorate to the point it can't be saved. Further, only one spouse needs to be of this opinion. The bottom line is that if your wife wants a divorce, you can't stop her from getting one, so don't even try to oppose it in court or you may expose yourself. The only time the judge cares about the specific reasons are when the other spouse contests the divorce by stating the differences can be reconciled. The only good side is that she can't plead your transgendered state, whatever it may be, as a ground for divorce, but only that there are irreconcilable differences.

If you live someplace where the court apportions fault and needs a factual basis, you may have more of a problem. In such a situation your spouse may be able to plead that you are transgendered and your wearing women's clothing constitutes mental cruelty, or whatever ground may be appropriate for your state. This puts it in the public record of a court file, and your secret is out. If keeping your alternate identity secret is essential, then the best course of action may be for you to agree with her before the papers are filed that grounds for the divorce exist (this is called a stipulation) and thereby avoid the gory details being spelled out in a divorce petition. Again, I don't practice in a state which addresses such issues relating to grounds for divorce, so see your lawyer.

And for everyone, when you see your lawyer be sure to tell him or her the whole story. Your lawyer needs to know about it in order to try and avoid this coming to public attention. For example, your lawyer can point out how this being public knowledge would adversely affect your employment, and she can kiss that alimony and child support good-bye.


"...your lawyer can point out (to your spouse) how
this being public knowledge would adversely affect your employment,
and she can kiss that alimony and child support good-bye"

The Children

What about those with children? Well, what can happen here will depend upon where you fall in the transgender spectrum. When dealing with the issue of transgendered parents, the courts across the country do seem agree on one issue. They will do what is in the best interest of the children. Now, what is in the best interests of the children in the opinion of the various courts differs wildly, so I will be speaking in general terms.

Let's start with the cross-dresser who still does not want any of this to be a matter of public record, and whose children do not know. Chances are your spouse will not want the children to know. That's fine - agree with her behind the scenes that you won't tell them, and will only be in male mode when the children are with you. If she is reluctant to accept your word and wants it in the order, remind her of the aforementioned adverse effects on your employment and subsequent ability to provide support. (Yes, I'm assuming you are going to pay support of some kind. The law here in California says that there is no gender preference relating to kids, but in actual fact it still exists.) Besides, if you ever break your word she will get to drag you back into court and you can rest assured that it will be brought up.

What if she doesn't want you to see the kids at all? For the casual cross-dresser this is not really an issue. The guiding principle is the best interests of the children, and it is generally considered that seeing both parents is in their best interest. A simple agreement not to dress in front of the children, or disclose it to them if it comes to that, will suffice.

Under these circumstances it may become part of the court order, or it may not, depending on whether the judge or mediator (depending on your state) is sensitive to your concerns and feels your word is sufficient. If you are given the benefit of the doubt, be assured that if you slip, any subsequent orders will specifically state you are not to wear women's clothing in front of the children. The moral? If you give your word on this, keep it.

For those of you who live full time, or are transitioning, the situation is more difficult. Again, the courts all consider the best interests of the child, but the opinions on what that may be are diverse. Of course, if you and your soon to be ex-spouse agree on what is best, that can always be made into your order. If there are differences, then you might try working them out in joint counseling with the counselor (preferably one experienced in this field) considering the children as the primary focus, and do this before court.

If she won't cooperate, then you are going to be at the mercy of the court, at least initially. It is very likely that the judge or mediator will want the opinion of a counselor who has spoken to the children, and will order the appropriate evaluation. But until that is done, the visitation you get will depend upon how enlightened the judge or mediator may happen to be. It could also have strings attached such as your pretending to be completely male while seeing the children. The opinion of the counselor is going to be a crucial piece of evidence, so it will be important to find two or three who have experience with transgender issues, and try and get the court to order the children and your situation to be evaluated by one of them. Otherwise, you are at the mercy of someone who may completely unqualified to address this issue, and the end result will be anyone's guess.

The bottom line, no matter your situation, is to remember the sad fact that society still, as a whole, thinks we are strange and perverted. A divorce is an emotional thing to start with, and going on a gender crusade can result in your being treated unfairly. If you find yourself in this situation, remember that you must keep a cool head, realistically evaluate your goals and your situation and, above all else, get professional help.


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