Transgender Divorce

Posted on March 24, 2016

By: Robin C. Huggin

"May you live in interesting times," is a Chinese curse or proverb, depending upon what authority you rely. Although each generation might proclaim their generation to live in the most interesting of times, I dare say that the millennial transition is turning out to be an ardent advocate and witness to respect for personal rights. This may lead some of us in the 21 st century to look back on civil rights and equal rights with a head scratching pondering of what seems so obvious to us now. The year of 2015 brought the landmark United States Supreme Court decision of In Re Obergefell (Obergefell v. Hughes), more commonly known as Marriage Equality, which summarily holds that no two parties of the same sex (or of any gender or gender identity) shall be deprived of the rights to enter into a legal marriage with all of its benefits and responsibilities. In one admittedly landmark decision, my clientele potentially doubled. Now, as far as legally-protected constitutional rights are concerned, same sex marriages are not to be treated differently than traditional marriages. Insofar as it comes to the divorce process (and unless there is a domestic partnership to dissolve), is the divorce process any different when a transgender party is involved? Let's explore that...

With the metamorphosis of Caitlyn Jenner being broadcast on tabloids and media of all manner, many of us have been able to witness her transition from a biological male and gender-identified male, the infamous Bruce Jenner, to a gender-identified female, Caitlyn Jenner, who is in the process of transitioning to a female in as many aspects as biologically and scientifically possible. We are learning the lingo associated with these transgender individuals and are quickly expanding our legal terminology and processes to encompass and protect their legal rights as well.

If you are interested in this topic enough to be reading this article, let me caution you to make sure that any authority you rely upon is dated after the Obergefell decision which was announced on June 26, 2015. Now, post- Obergefell, each and every state in the United States must recognize the validity of a same-sex marriage or a prior marriage that was valid when entered into. This is essentially now a part of the protection provided by the Fourteenth Amendment to the United States Constitution. Since transgenders are of a biological sex transitioning to a gender-identified sex, how can they not fit into the protections afforded under the Fourteenth Amendment? They do. Regardless of what transitioning is taking place, as long as their marriage was valid when they entered into it, it will continue to be recognized under Obergefell. Any marriage that a transgender enters into after Obergefell will be recognized as valid as long as the state's criteria are met.

So, if the marriage of a transgender is viewed as the same as any other marriage, then a divorce involving a transgender or a same-sex couple will be the same. A uniqueness in California is that, because we had a system in place for domestic partnership prior to Obergefell, any couple that was in a registered domestic partnership in the State of California, will have to dissolve their domestic partnership along with their marriage, should they choose to do so. The domestic partnership is a separate legal entity and continues to be treated separately from marriage and it's step-sister, divorce.

So use caution when googling or researching transgender divorce. Legal information is specific to the state that the author is licensed in (assuming the article is authored by an attorney), and if the information was written before Obergefell then it's no longer relevant from a legal perspective.