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Transgender Legal Advisor
Divorce After the Transition
By Carolyn Woodward
Got a legal question? Having some problems with the law? TG Attorney Carolyn Woodward will try and answer your questions. Contact her via Email at CarolynWWD@aol.com or message publisher Cindy Martin and we'll make sure she gets your question.
If a man and a woman marry, and one later discovers that he/she is
transsexual, transitions, and gains legal status as being the sex opposite
that of their birth, and now the same as their spouse, is the marriage still
valid? Do they have to get a divorce to terminate the marriage? I have to
confess that I thought the answer was obvious. After the topic was
suggested, I mentioned it to my own spouse and was surprised to discover that
she felt the answer to be that the marriage became invalid. They are now the
same sex, no state recognizes same sex marriages as of yet, so their marriage
would no longer exist. This was the line of her reasoning. It is certainly
logical, but it brings one to an erroneous conclusion.
The answer is, in brief, that you still need to get a divorce.
In discussing why, let's start with the fundamental matter of what
constitutes a legal marriage. A marriage is, in essence, a personal
relationship created by virtue of a civil contract between a man and a woman,
both of whom must consent to the marriage and, by inference, be competent to
give that consent. These are pretty much the common requirements, at least in
this country. (I'm sure there are places still where the parents contract the
marriage and the parties have no say at all, but we won't go there.) The
details of how the relationship is formed vary from state to state, but all
require a consenting man and woman.
Once the marriage is entered into, it is valid until terminated. Marriages
are terminated in one of three ways: by the death of either party; by
dissolution (divorce); or by annulment (judgment of nullity). Change of sex
is not something which will terminate a marriage, or cause it to be
nullified. It will certainly provide grounds for a divorce, and may even
provide grounds for an annulment, but a court decree is still required. So
if you don't get the divorce or nullity, you are still married, though you
may both now be women, or men.
I don't think I have to go into too much detail about what a divorce is. It
is a court ordered termination of a valid marriage. It requires some kind of
grounds, which will vary from state to state. Here in California there are
two - irreconcilable differences and incurable insanity - basically divorces
will be granted just because one or the other person wants out. Some other
states also have this "no fault" divorce system, or a variation thereof.
Others require a showing of good cause - defined in their statutes. I would
be very surprised if SRS could not be made to fit one or more of those
grounds no matter where you live.
What about an annulment? It does what the term implies - it nullifies the
marriage so that, legally, it never existed. Wouldn't that apply in the case
where the two spouses are now of the same sex, and can't form a legal
marriage? The answer is still "no." Remember, a marriage is valid until
terminated by death, divorce, or annulment. The basis of an annulment is
that the marriage was not valid when it was created. Even then, some forms
of invalidity can be cured by circumstances occurring after the marriage.
Ok, I know I'm losing people here, so I will explain.
There are two categories of marriages subject to a judgment of nullity - they
are void and voidable. SRS can not make a marriage void but may, as will be
seen in a moment, provide grounds for a voidable marriage. And the
difference between the two is?
A void marriage is one which will not be recognized as being valid in the
first place, and which the law will not permit to be ratified, or validated,
at a later date. There are, traditionally, two grounds for a void marriage.
These are incestuous and bigamous marriages. Even though the man and woman
may consent to the marriage, and take the necessary steps to formalize it,
the law says these marriages are not recognized because they are illegal in
the first place. There is one small loophole in the case of a bigamous
marriage. That's the situation where one of the spouses started a divorce
prior to the marriage, but never finished it - usually by forgetting to get a
final decree - but the person believed he or she was divorced. This is fixed
by the issuance of a nunc pro tunc, or backdated, divorce decree which
states, in essence, that an error is being corrected and declares the party
to have been divorced as of a date prior to the beginning of the current
marriage. But unless these precise circumstances exist, the marriage is still
void.
I have read arguments to the effect that if the marriage is void, then the
spouses can just walk away from it without a court decree. I don't know
about that, but anyone who does that is a fool. There are still property
issues, perhaps child support, custody and visitation issues, and there is
still a marriage certificate in the public records. The rest of the world
does not know the marriage is void, and that could create complications. The
judgment of nullity tells the world that these people were never validly
marriage, and the court can resolve the issues involved in separating.
This last argument does not apply to the situation of voidable marriages,
where a court must make a determination as to whether the marriage will be
voided, or whether it has been ratified (in which case a divorce must be
sought). This is the arena in which SRS could provide the grounds for an
annulment.
Voidable marriages have specific grounds as well. These traditionally
include: a sincere but mistaken belief that the former spouse is dead - and
the spouse turns up alive (the belief in the death can be based on
circumstances or prolonged total absence, of a length determined by statute,
after which the spouse is considered deceased); lack of capacity (a minor
enters into a marriage without proper consent, or a person is mentally ill to
the point where they are incompetent to consent); fraud; force; or the
widely known physical, and incurable, impediment to the marriage relationship
(commonly known as inability to consummate the marriage). If any of these
are to apply, they must exist at the time of the marriage.
These are voidable, as opposed to void, because they are subject to
validation, or ratification. A minor who reaches the age of majority and
continues in the marriage, for example, ratifies the marriage. When the
presumed dead spouse shows up, the other can choose whether to continue the
current marriage. If after knowledge of the fraud, the cessation of the
force, or knowledge of physical incapacity, the other party continues in the
marriage, it can be considered ratified and the court has the power to deny
an annulment.
Fraud is the possibly which could be considered in this discussion. If a
person, at the time of the marriage, knows they are TS, and that they are
going to, or know they are very likely to, go through with the process either
to the point of living full time as a woman, or to surgery, and did not tell
their spouse prior to the marriage, then the spouse could claim fraud as a
ground for a nullity. If the spouse discovered the intent to transition was
there, but chooses to continue the marital relationship, this may be lost as
a ground for a nullity. If the spouse later decides to terminate the
relationship, then a divorce would be appropriate.
In summary, if married as male and female the couple must formally terminate
the marriage, if it is to be terminated, even though the transitioning spouse
is now, legally, of the same sex as the non-TS spouse. It is not automatic.
The above may provide some guidance as to possible mechanisms, but the effort
must be taken or the marriage will continue, at least as a legal entity if
not in fact.
Finally, as usual, I must remind you that this is a general discussion of the
issues and not advice as to what you should do. Always consult a lawyer
licensed to practice in your state in order to address your specific
situation.
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