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California Divorce in the instance of Gender Transitioning

California Divorce in the instance of Gender TransitioningFiling for divorce and going through the divorce process can be a tedious and painstaking ordeal. California divorce laws, like every state, are deeply complex. They need to be in order to encompass every possible scenario. So, when it comes to transgender couples and divorce, it’s no wonder that California is still navigating its way through unchartered territory.


Pre-Transition Marriage and the Question of Validity


Gender variance can be a very delicate situation, especially when the gender transition takes place after a marriage has already been established. Many states have yet to perfect a legal structure to care for such instances.


 In California divorce law, it is stated that a valid marriage can only be dissolved by death or divorce. It follows that a marriage cannot be dissolved based on one or both parties undergoing a gender transition, even on the grounds of a same sex marriage. To dissolve the marriage, the other partner would still have to file and go through the divorce process. One example of a fully litigated case citing this example is a 1998 California Divorce court case that is now redacted.


Post-transition Marriages and the Question of Validity and Divorce


In this instance, the question is raised on whether someone who transitions to the opposite gender (Born a male and transitioned to a female) can now enter into a valid marriage based on their post-operative gender. California law and public policy has been consistent in allowing the post-operative gender of a person to be recognized as their official gender and, can therefore enter into a marriage with someone opposite of their post-operative sex.


Now, where California divorce law is concerned, in the event of filing for divorce in a post-transition marriage, the instance of a gender transition can and has been used to the detriment of that person within divorce proceedings when it comes to spousal support, child support, and custody of children. As these situations of transgender California divorces have become more frequent, best practices have been developed in taking some necessary steps to protect couples in post-transition marriages, which have included:


  • 1.       Have a memo of understanding, a simple contract between you and your spouse-to-be that makes clear that your    spouse knew and understood your gender identity prior to the marriage. (Think gender prenup)
  • 2.       Execute a will or a trust to clarify how your assets are to be distributed upon your death, or even possibly divorce.
  • 3.       Sign a medical power of attorney form to give your spouse the power to act on your behalf should you become unable to do so.


Divorce proceedings can become exceedingly convoluted. Even if the matter seems simple on the surface, adding the question of gender and gender transitioning to areas of marriage validity, divorce proceedings, custody battles, and the division of assets has opened up a whole new realm of questioning and potential laws.


California divorce law and gender laws in general still have not fully defined many crucial areas. Many states are still in the infancy of designing laws to protect the rights of transgendered people and even more so in couples. It will be interesting to see how laws and rights change around marriage and divorce in California, given that same sex marriage is a hotly contested social issue. It is always important to know your rights in divorce proceedings no matter that situation.



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