With the passage of Proposition 102 in Arizona, the Arizona Constitution now provides that “
But people who can legally marry should be able to then legally divorce, shouldn’t they? Well, maybe not. At least not in any state they may choose. Under the Federal Defense of Marriage Act (“DOMA”), no state is required to give full faith and credit to a gay marriage validly performed in another state. This is why states like Texas and Arizona do not have to recognize gay marriages validly performed in other states and why the Texas court had the authority to decline to grant a divorce to a gay couple validly married in Massachusetts.
Maryland, however, recently decided this issue opposite from Texas and granted a divorce to a resident gay couple who were legally married in another state. The Maryland court granted the divorce despite the fact that Maryland law does not allow gay marriage. Though not legally required to do so, the Maryland court recognized the marriage validly performed in a different state and granted the divorce. Massachussets has now removed its divorce residency requirement specifically to allow gay couples from other states who married in Massachusetts to get a divorce in Massachusetts if their home states will not grant them one.
This is an evolving area of the law that seems to raise endless questions without a lot of clear answers. For example, in Arizona, what effect does one spouse’s undergoing gender reassignment during marriage have on the validity of his marriage under Arizona law? If the Arizona Constitution is applied literally, the marriage would not be valid or recognized once the gender reassignment surgery is complete because the marriage would not then be between “one man and one woman”, even though the couple consisted of one man and one woman when the marriage began.
If one of the spouses then sought a divorce in Arizona, would the divorce be denied because the marriage was not “valid or recognized”? How would the couple’s property be divided between them? Would they be left to a civil action to divide property? Would community property laws not apply? Would there be no claim for spousal maintenance even when spousal maintenance would have been warranted absent the gender reassignment by one spouse?
I do not believe the scenario I described above is hypothetical. I am confident it has already happened in Arizona and will continue to happen. I suspect most of the couples in this situation–where one spouse undergoes gender reassignment surgery during the marriage–have no interest in bringing their cases to the newspaper headlines. They have no desire to set a precedent or make “new law.” If they are unable to continue to live together as married partners, they likely want to get a divorce quietly and inexpensively and move on with their lives like any other divorcing couple wants to do.
My advice to my client, whether my client were the spouse who had gender reassignment surgery or the spouse who did not, would be to file the divorce as though the gender reassignment had not occurred. If neither spouse made the gender reassignment an issue in the case, it is likely the trial court would allow the divorce without any problem. The status of the parties as “husband” and “wife” at the time the marriage occurred would be used in all the court filings. The court filings do not require a statement of gender–maleness or femaleness. The court papers simply identify the parties as “husband” and “wife.” Simply ignoring the gender reassignment for purposes of the divorce is likely the best approach. In time I expect some reported Arizona cases or a U.S. Supreme Court ruling will bring answers to this unsettled area of the law.
Copyright © 2012 by Scoresby Family Law – J. Kyle Scoresby, P.C. All rights reserved.