Sex Change Impact On Divorce

“My spouse has transitioned from one gender to another during our marriage, how does that impact our divorce?” For purposes of this question, I am assuming that the spouses were of opposite gender on the date of marriage, as the issue of same-sex marriage in Texas is best left for another entry and could confuse the issues here.

The truth is, that such a question depends on a very fact specific analysis of the history of your relationship, as is the case with almost every issue that can arise in a divorce.

If there are no children, then the answer is, there is not an impact based solely on the fact that your spouse transitioned.  You and your spouse would be divorced, just as any other couple married in Texas.  In regards to the division of property, transitioning alone is not a statutory basis for which a party could request the court to award a disproportionate share of the division of assets.

If there are children, then the answer is, there could be an impact.  Just like any issue in a marriage with children, the court could take into consideration how the parties addressed such a transition with their children and/or the impact on the children.  Although we have no caselaw in Texas regarding a custody dispute involving a transgender parent, it is important to note that the best interest of the child standard includes an examination of the following factors:

  1. Which party can best provide for the child’s physical, psychological, and emotional needs and development;
  2. The cooperation between the parents; and
  3. The child’s preferences.

These are just a few items that the court may consider, but should demonstrate why this is a case and fact specific analysis.

For more information, please consult an attorney to discuss the issue.

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The Supreme Court of the United States released their opinion on Obergefell v. Hodges. The decision came down to a 5-4 vote, with Chief Justice Roberts dissenting, joined by Justice Scalia and Thomas. Justice Alito also filed a dissenting opinion in which Scalia and Thomas also joined.

Chief Justice Roberts’ dissent delivers his opinion that the Supreme Court over –stepped their boundary as a Court, and thus have stolen this issue from the people of the United States. He dissents that the Constitution gives the Supreme Court the power to say what the law is, not what the law should be.  This statement really seems to portray the entire center of his dissent.  Further, he calls the decision of the court an “extraordinary step” and “ an act of will, not legal judgment.” He brings forth the realization that it can be tempting and an onerous job for Justices to rule on controversial issues, as they can easily confuse their own personal preferences with the requirements of the law.

He states that the Court is “not concerned with the wisdom or policy of legislation and the majority neglects that restrained conception of the judicial role.” Basically, Chief Justice Roberts again forces his theory of over-step, as the Court interpreted what the law “should be.”

Further, he makes clear that his dissent is not about his personal views on same-sex marriage, but rather it is about our democratic republic and the theory that this decision rests with the people of the United States and not with the Supreme Court of the United States. He also delves into a long list of precedential cases and historical cases such as Loving vs. Virginia, which gave interracial couples the right to marry.

He continues in his dissent to reference the majority, who provided definitions for marriage, as well as the historical and societal views of marriage and the marital relationship.  His two cents regarding the union of marriage seem to boil down to the idea that marriage is fundamental and did not come about as part of a political movement. He further states that, “marriage arose in the nature of things to meet a vital need: ensuring children are conceived by a mother and father committed to raising them in the stable conditions of a lifelong relationship.” Further on this thought, he states and implies that procreation is a societal need and that society has recognized the act of procreation between a man and a woman as marriage.

He again explains that the majority’s view and decision is more of a social policy than of a matter of constitutional law. He explains that the majority’s argument “stripped of its shiny rhetorical gloss  is that the Due Process clause gives same- sex couples a fundamental right to marry because it will be good for them and for society.”

To make his dissent even more forthright and impactful, he read his dissent from the bench, something that he has never done in all of his ten year term as a Justice!

Justice Antonin Scalia, a fellow dissenter of the Chief, characterized the decision as a “judicial Putsch” and suggested that, before he signed on to an opinion like the majorities, “I would hide my head in a bag.”

Obergefell v. Hodges, No. 14-556, slip op. at 28 (Sup. Ct. June 26, 2015).

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Last Friday, the Supreme Court of the United States released their opinion in Obergefell v. Hodges.

Obergefell consists of a number of consolidated cases that originated from Michigan, Kentucky, Ohio, and Tennessee, all states that limited marriage to a union between a man and a woman.  The petitioners in Obergefell are fourteen same-sex couples and two men whose same-sex partners are deceased.

The petitioners sued the state officials who are responsible for enforcing the state laws in question.  All of the trial courts, the individual United States District Courts in the petitioners’ home states, ruled in favor of the plaintiffs.

The respondents appealed to the Sixth Circuit Court of Appeals, which consolidated the matters and reversed the decisions of the trial courts.  From there, the Petitioners sought review by the Supreme Court of the United States.

The Supreme Court review considered two issues on review:

  • Whether the Fourteenth Amendment requires a state to license a marriage between two people of the same sex; and
  • Whether the Fourteenth Amendment requires a state to recognize a same-sex marriage licensed and performed in a state that does not grant that right.

The Supreme Court held that the Fourteenth Amendment does require both.  Justice Kennedy authored the majority opinion in the 5-4 decision, in which Justices Ginsburg, Breyer, Sotomayor, and Kagan joined.

The Court held that the Due Process Clause of the Fourteenth Amendment extends to certain personal choices.  Examining numerous previous decisions regarding the right to marry, the court held that such analysis requires conclusion that same-sex couples have the right to marry.  The Court notes that the reasons that marriage is fundamental apply equally to same-sex couples.    First, the Court addresses how the right to marry is central to personal autonomy.  Second, the Court notes that the right to marry is fundamental as it promotes the two-person union over others because of the level of commitment.  The third basis is that it protects children and families.  The Court notes that all parties are in agreement that same-sex couples provide children with loving and nurturing homes and that the children of same-sex couples, without the protections of marriage between their parents, suffer.  Finally, the Court notes that marriage is an integral part of social order in our country.  Justice Kennedy notes that, although limiting marriage to opposite-sex unions may have seemed natural and just, such limitation conflicts with the central value of the fundamental right to marry.

After discussing that the right to marry is fundamental, the court holds that under both the Due Process and the Equal Protection clauses of the Fourteenth Amendment, same-sex couples may not be deprived of the right to marry.

Next, Justice Kennedy turns to the second question presented.  As the Court held that same-sex couples have the fundamental right to marry in all states, there is no legal basis for a state to fail to recognize a marriage based on its same-sex nature when lawfully performed in another state.

In conclusion, Justice Kennedy writes:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family.  In forming a marital union, two people become something greater than once they were.  As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death.  It would misunderstand these men and women to say they disrespect the idea of marriage.  Their plea is that the do respect it, respect it so deeply that they seek to find its fulfillment for themselves.  Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions.  They ask for equal dignity in the eyes of the law.  The Constitution grants them that right.

Obergefell v. Hodges, No. 14-556, slip op. at 28 (Sup. Ct. June 26, 2015).

Same-Sex Marriage in Texas

06/26/2015 – Same-sex is now legal across the nation. – Alfredo

Texas is currently one of twenty states in the United States which ban same-sex marriage via a constitutional amendment. In October 2014, the US Supreme Court let stand a ruling held by the 10th Circuit Court of Appeals finding Utah’s ban on same-sex marriage unconstitutional. The resulting effect was that same-sex marriage bans are effectively voided in states such as Utah, Virginia, Indiana, Wisconsin, and Oklahoma. By declining to rule on the issue, combined with the changes in attitude toward same-sex marriage throughout the country, it can be inferred that the Supreme Court believes that same-sex marriage will become the norm throughout the United States.

Texas, along with Mississippi and Louisiana, comprises the 5th Circuit Court of Appeals, which has not yet ruled on the issue of same-sex marriage. It appears the tide is changing on the ban however. On November 10, 2014, Texas lawmaker Rep. Farael Anchia (Democrat) introduced a bill into the 2015 Legislative Session that would revise the current state law language specifying that a marriage is between a man and a woman. A similar bill introduced by another lawmaker would add an amendment to the state Constitution. Both of these bills could be voted on by the citizens of Texas in the 2015 elections.

For now, same-sex marriages from other states are not recognized as valid marriages in Texas. A same-sex couple previously married in another state will not be able to procure a divorce from a Texas court, as the Texas court system does not recognize that a valid marriage exists. This has overreaching effects on many family-law related cases other than divorce, including child custody disputes and adoptions.

It is possible for a same sex couple to adopt a child or have a custody arrangement through the family courts however conservative values are still pervasive throughout many small-town court systems and even to some extent the metropolitan court systems and until the ban on same-sex marriage is overturned, it will continue to be exceedingly difficult for same sex couples to receive recognition of their marriages, divorces, or family law needs.

Since there are family law issues that can be settled in the Texas Family court systems, it is important to be represented by a family law attorney who is sensitive to the challenges same sex couples may face and has experience in the area. Contact the Ramos Law Group, PLLC and schedule an appointment to discuss your case and ask questions relating to the legal process.

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