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Legal Ease: Marriage validity for transgenders

I have been repeatedly approached lately with inquiries regarding the validity of marriages of Transgender individuals. Clearly this is an area of concern and interest about which there is not a lot of information available.

The issue is actually a lot less complicated than it would appear to be and depends a great deal on when the transition took place.

Some transgender people marry an individual of the opposite gender and subsequently undergo sex-reassignment. This results in a married couple who are of the same gender.

Cases have been brought in several states including New Jersey, Louisiana, Florida, and here in California, among others, attempting to invalidate such marriages.

Thus far, such cases have not ultimately been successful.

This is because it is a well established legal principle that the validity of a marriage is determined at the time the marriage is entered into and valid marriages will not be invalidated retroactively.

As these marriages are presumptively valid, the burden of proof falls upon the person wishing to challenge the validity of these marriages.

Let's explore this further.

When one enters into a legally recognized relationship, either by marriage, civil union, or domestic partnership, the status of the validity of that relationship is determined at the time the relationship is entered into.

Therefore, if a couple enters into a heterosexual marriage and one of the spouses subsequently transitions to the opposite gender, as long as that relationship was valid prior to the transition (i.e. at the time the marriage was entered into), the marriage will remain valid after the transition.

On the other hand, some states will not recognize -- for the purposes of marriage -- the new gender of someone who has undergone sex-reassignment and therefore will not recognize the validity of what would appear to be a heterosexual couple in which one of the parties had previously undergone sex-reassignment, unless that state recognizes same-sex marriages.

Here in California, the validity of a marriage is determined at the time the marriage is entered into and is based on statutory law, Family Code Sections 300 et seq. and 308. This very issue was raised in an Orange County case in 1998 in which the Court held that the marriage between a woman and her transsexual husband was valid. Of course, the timing of the transition can be crucial in marriage cases.

For example, if a male-to-female transsexual marries a female after the November 5, 2008 cut-off date, the marriage will be recognized as a legitimate legal relationship, but will not be recognized as a marriage, due to the passing of Proposition 8. This is because California recognizes the new gender of an individual who has undergone sex-reassignment for all purposes, including marriage.

Since the validity of transgender and same-sex-couple marriages is not settled or consistent across the board, it is very important that such couples take the additional necessary steps to protect themselves, by drafting legal documents that document their desires and intentions regarding their families, such as Advanced Health Care Directives, co-parenting agreements, Wills, and HIPAA directives, to name just a few.

This area of the law is constantly changing and I encourage the readers of this article to subscribe to my blog or follow my Facebook page or my Twitter feed to stay up to date on those changes.

I also encourage readers to submit questions and/or suggestions for article subjects to me and I will try to address those issues in ongoing blogs or articles.

Rivka Israel, Esq. is a local Family and LGBT Family Law attorney who spent her undergrad years at Bar Ilan University, received her JD from California Western School of Law and was admitted to the California State Bar in 2000. She is active in the community, a member of the GSDBA and writes articles for various local LGBT media. For more information about Rivka or her practice, call (858) ITS-EASY (487-3279), visit her Family Legal Ease website or contact her via email, at lavenderlegal@yahoo.com.