I have posted previously about whether, under Arizona’s marriage amendment, one spouse’s gender reassignment surgery during marriage would make the marriage invalid and unrecognized in Arizona.  The answer is still unclear, but at least one other state has now weighed in on this issue.

The Michigan Court of Appeals addressed this issue in a case decided April 16, 2013.  The case was a divorce action between Devon Pearl Burnett and Bobbie Eliza Burnett, who were married in 1984.  In 2003, Bobbie Burnett, who was born a man, underwent gender reassignment surgery to become a woman.  Later, Devon filed for divorce.  After Devon initiated her divorce case, Bobbie filed a motion for summary judgment, arguing that the trial court did not have jurisdiction to grant a divorce.  Bobbie argued that because Michigan law only recognized marriage as the union between one man and one woman, Bobbie’s marriage to Devon became null and void once Bobbie completed her gender reassignment surgery.  The trial court disagreed with Bobbie and granted a divorce.  Bobbie appealed.

The Michigan Court of Appeals affirmed.  Noting that the marriage was valid as between a man and a woman at the time it was entered, the Michigan Court stated as follows:  “We likewise reject

[Bobbie’s] argument that his alleged post-operative status somehow magically dissolved what was otherwise a valid marriage. . . . Once validly entered into, one spouse’s actions cannot unilaterally result in the legal dissolution of the marriage without court involvement.”  To read the case, click on this link:

http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20130416_C309640_40_309640.OPN.PDF

This Michigan case has no binding effect in Arizona, but it would probably be persuasive if the same issue arose in an Arizona case.   The reasoning is sound.  If the marriage was valid when it was entered, it would be unfair for one spouse’s unilateral actions to nullify the marriage.  If one spouse’s gender reassignment surgery during marriage were allowed to effectively nullify the marriage, the other spouse would likely lose the benefits and protections of community property law.  No marriage–no community property.

There is a key difference, however, between Michigan’s marriage amendment and Arizona’s, which could potentially lead to a different result were a case with the same facts to come before an Arizona court.  The Michigan marriage amendment states that “a marriage contracted between individuals of the same sex is invalid in this state.”  Emphasis added.  The word “contracted” was significant in the Michigan Court of Appeals’ decision.  Said the Michigan Court, “although [Bobbie] underwent gender reassignment surgery in 2003, that does not impact the undisputed fact that when the marriage contract was entered into, [Devon] was a woman and [Bobbie] was a man.”  Emphasis added.  The Michigan Court essentially found that, because Michigan marriage amendment referred to marriages contracted between persons of the same gender, the marriage amendment only invalidated marriages between persons who were of the same gender at the time they married each other.

The Arizona marriage amendment, however, does not make any reference to the spouses’ genders as of the date of the marriage.  Rather, it simply states as follows:  “Only a union of one man and one woman shall be valid or recognized as a marriage in this state.”  Arizona Constitution, Article XXX.  Accordingly, it is plausible an Arizona court could find that, even when a marriage is validly contracted between one man and one woman, once one spouse undergoes gender reassignment surgery such that the marriage is no longer the “union of one man and one woman”, the marriage is no longer valid or recognized in Arizona.  While to me personally such a result  would seem unfair and extreme, I think it is plausible, especially here in Arizona.

Copyright © 2013 by Scoresby Family Law – J. Kyle Scoresby, P.C. All rights reserved.