On behalf of The Marks Law Firm, L.L.C. posted in Divorce on Wednesday, April 3, 2013
Some of you may remember several years ago the unusual case of the “pregnant man,” a transgendered individual who began life as a woman, began the transformation to a man by removing his breasts and taking hormones, but decided to get pregnant when he discovered his wife could not bear children. So, he stopped taking hormones and managed to carry two children to term through artificial insemination.
Well, as often happens, pregnant man and his wife separated and now seek a divorce. The couple married in Hawaii nine years ago; at the time, pregnant man listed himself as a man, even though he had not completed the gender transformation. So, the initial question from a legal standpoint: were pregnant man and his wife ever legally married? If not, the parties cannot get a divorce.
The couple lives in Arizona, a state that does not recognize same-sex marriages. Consequently, the family court judge in Arizona had a very difficult situation before him – two people who have lived together as husband and wife for nearly a decade, and who have two children together, now seeking a divorce. If he nullifies the marriage, what will happen to the children? What will happen to the support rights of the wife? What about their property? The short answer is that a nullified marriage means the court lacks the authority to divide any property, to provide any support and to arrange for custody of the children. The custody situation becomes even more complex because “pregnant man” did not contribute any DNA to the children and under Arizona law may be unable to maintain a paternity suit (one of the under the radar questions in same-sex relationships has been the status of children born by artificial means, requiring a change to many states’ paternity statutes to give legal recognition to both parties).
The Arizona court refused to grant the pregnant man and his wife a divorce, finding that the marriage itself was invalid as a same-sex marriage, and both parties will be appealing that decision.
The legal status of a transgendered person in the circumstance of marriage and parentage is new and difficult ground under current statutes, some of which use biology to define man and woman. Eventually, we will see states needing to revise their statutes so that transgendered individuals can be recognized as their new gender. Presently, transgendered individuals fall into a gray area with regard to marriage and divorce.
What if the Supreme Court strikes down DOMA in two months? If that happens, no state could nullify a same-sex marriage purely because of a state policy against same-sex marriage. It is possible that the Supreme Court could save pregnant man and his family by requiring all states, including Arizona, to recognize the otherwise valid marriage in Hawaii (though Arizona could try to use fraud as a public policy rationale to get around DOMA).
We will continue to update the story on the blog. In the meantime, if you questions about rights involving a transgender individual, contact us – we can help.