Divorce Issues for Transgender People

Anyone who has ever been divorced can tell you that even the most straightforward divorce is not easy for the people going through it. Every marriage, and every divorce, is unique, and there are any number of issues that can complicate a divorce. Going through a divorce can sometimes feel like you are on trial, and rarely is this more true than when you are transgender. It is hard to come by statistics for how many divorces involve a transgender spouse, but in a real sense, statistics don't matter: if you are going through divorce as a trans person, your experiences are what count. Let's talk about divorce issues for transgender people, and how to get the help you need to navigate your divorce.

Coming Out as Trans to a Spouse

Any time one person in a marriage goes through significant growth or change, it can put tremendous stress on a marriage. The other spouse may feel bewildered or betrayed. They may take the change as a response to who they are, and may become angry or defensive. Even when things go well, it is necessary for the spouses to figure out how the relationship will accommodate the new reality.

When one spouse comes out as transgender, many marriages cannot bear up under the weight of the change. This is painful, but may be necessary if the alternative is the transgender spouse needing to hide, deny, or suppress who they are. If the trans spouse wants to transition, for instance, and the other spouse does not want them to, or to even acknowledge that they are trans, divorce may be the only option.

There will be a range of emotions on the part of both spouses. The trans spouse may feel fear about the future, relief at having finally been honest, affection for their spouse, and guilt for hurting them with the news. The other spouse may feel shock, anger, embarrassment (what will people say?), and grief at the loss of the relationship they believed they had.

Even if both partners believe the marriage cannot or should not be saved, counseling—either alone or together—can help them process emotionally what is going on, and divorce in a way that is less damaging to both of them and especially to any children in the home.

Having Trans Identity Used as a Weapon in Divorce

In many divorces, one spouse will try to use the other spouse’s behavior or personal traits as a  weapon in the divorce, particularly in child custody cases. Unfortunately, when a transgender person is in the midst of a divorce, their trans identity or their decision to transition may be claimed by the other spouse as evidence that the trans person is an unfit parent or even a danger to the children. There is no scientific validity to the idea that just because a person is trans and/or transitioning, they cannot be an excellent parent.

Unfortunately, many lawyers and judges are unfamiliar with the facts and so have an unreasonable bias against transgender parents. In the case of lawyers, this makes them unable to advocate effectively for their own clients.

Even when children are not involved in a divorce, there are struggles for a divorcing trans person. Lawyers or judges may refuse to use the person’s preferred pronouns or name, dehumanizing them and reducing the likelihood of just treatment in court. In many cases, the trans person loses their privacy as the other spouse makes their gender identity an issue in litigation.

Getting Fair Treatment in Divorce as a Trans Person

As hard as it still is, divorce is easier for transgender people now in some respects than it used to be. For example, before same-sex marriage was legal in all states, some spouses of transgender people tried to have the marriage annulled or voided rather than getting a divorce. If the trans spouse had transitioned before the marriage, a wife might argue that her trans husband was “really” a woman, and that therefore the marriage was invalid (even though the wife had never disputed the validity during the marriage). This line of argument exposed trans people to the risk of losing marital assets and benefits and subjected them to humiliating questions and physical examinations.

Even now, if gender identity is an issue in your divorce, it is important to find an attorney who understands the unique issues in transgender divorce and who will insist you be treated fairly and with respect. You are at your most vulnerable during a divorce. Even if you are the type of person who ordinarily speaks out on your own behalf, you need a skilled legal advocate in divorce.

We invite you to contact Mundahl Law to schedule a consultation to discuss the issues that affect you in a confidential, respectful, empowering environment.

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Categories: LGBTQ+ Concerns

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[My attorney] has been my attorney for a year and a half and has helped out with multiple post-divorce related issues, including a matter that went to trial a couple months ago. [My attorney’s] expertise was invaluable and her diligence and a… Read More
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