Divorcing Over Gender Identity

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Divorcing Over Gender Identity

Divorce when you’re married to a transgendered person

Divorces are difficult enough when the gender identity of each spouse is clear. They become more difficult when one of the spouses informs the other spouse of their transgender status. Divorcing over gender identity raises a lot of legal and practical issues for both spouses.

A spouse who discovers after the marriage begins that his/her spouse is transgender will likely have a range of emotions including anger and confusion. The non-transgender spouse may want to seek a divorce because intimacy issues are now different and because of a lack of trust in their spouse due to the failure to disclose their sexual identity before the marriage.

The transgender spouse is also likely to have many different emotions because it can be painful and difficult to announce your transgender identity.

Is transgender identity grounds for divorce?

In New Jersey, you can file for divorce if there have been irreconcilable differences for six months. The disclosure that your spouse is transgender for many if not most spouses would create an irreconcilable difference. The main requirement for divorcing over gender identity based on irreconcilable differences would be then to wait for six months before you filed for a no-fault divorce.

You can also separate from your transgender spouse and wait 18 months. After the 18-month wait, you can file for a no-fault divorce without directly addressing the divorcing over gender identity issue.

New Jersey also permits divorces if there are formal grounds. The grounds for divorce normally wouldn’t apply unless your spouse committed adultery or was physically or mentally cruel to you.

Before same-sex marriages became legal in New Jersey and across the countries, some spouses even tried to annul the marriage on the basis their spouse was transgender. Voiding a marriage would affect how property is divided, the eligibility for alimony, and the eligibility for other benefits such as healthcare benefits and Consolidated Omnibus Budget Reconciliation Act (COBRA) benefits.

Generally, if you are considering divorcing over gender identity, New Jersey will approve divorcing over gender identity if you meet the no-fault grounds or a fault ground. New Jersey will normally not annul a marriage due to a newly disclosed transgender status.

How does transgender status affect the financial issues – property division, alimony, and child support?

The status of a spouse’s gender identity should not legally affect the marital issues. Marital property is still evaluated the same way as it is for other spouses when spouses are divorcing over gender identity. The factors that might favor one spouse or another are still the same.  Legally, alimony and child support shouldn’t be affected by a spouse’s transgender identity either.

There may be practical considerations though. If a spouse’s gender identity becomes public, it could affect their employment and their ability to earn a living – which does affect equitable distribution, alimony, and child support. While employers shouldn’t fire transgender workers or refuse to hire people because of transgender status; not every employer can be counted on to do what’s right. The laws protecting transgender people in the workplace are still evolving.

Divorcing over Gender Identity and How it Affects child custody?

The non-transgender spouse may try to argue that their spouse’s transgender identity makes their spouse an unfit parent.  While transgender status is more acceptable in today’s world, some judges may consider the transgender status as a factor in the child custody decision – even there’s no scientific evidence to show transgender parents are unfit. The court is likely to consider the effect the disclosure has on the children. The court may seek guidance through a child psychology evaluation of the child. The court may also be concerned if the transgender spouse is seeking medical care for their transition.

Generally, transgender parents have the same rights to be parents to their children as any other parent.

At DeTorres & DeGeorge Family Law, our divorce lawyers represent people no matter their sexual identity. We’ll aggressively pursue all aspects of your divorce case including – fault and no-fault divorces, marital property division, alimony, child custody, and child support. To speak with an experienced family lawyer who understands divorcing over gender identity, call us at 908-691-2104 or complete our contact form to schedule an appointment. We have offices in Clinton and Morristown.

Caitlin DeGuilo Toker
Caitlin DeGuilo Toker joined DeTorres and DeGeorge as an associate attorney in June 2014 and was named a partner of the firm in May 2019.Prior to joining the firm, Caitlin was associated with law firms specializing in the practice of family ...
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