Monday, April 2, 2007

Sex change doesn't end spousal support

This one should be a no-brainer: a Florida court has rejected an ex-husband's bid to end his support obligations on account of the fact his former wife has become a man. The ex-husband had first argued that the person to whom he owed the obligation no longer exists (not quite, sir), and then argued that his paying alimony (as it's still called there) to a man was against the State's public policy against recognizing same-sex marriage.

Unfortunately, the court reached this inevitable result by way of unnecessarily bad reasoning -- albeit reasoning seemingly compelled by state precedent. To wit, Florida does not recognize the possibility of changing one's sex, per
Kantaras v. Kantaras, 884 So.2d 155 (Fla. App. 2004).

Accordingly, the Lambda Legal attorneys representing the former Mrs. Roach, now Mr. Silverwolf, called this
a good news, bad news decision. While the end result of the court ruling is good for our client, part of how we got there is bad for the transgender community as a whole in Florida. This is the precise example of why it is damaging to chain people to the gender on their birth certificate. It's wrong to call our client a woman when Julio is a man.
The conclusion that sex change is legally impossible is simply not necessary to decide a case like this. Even once one accepts that the former wife is now male, this should not invalidate the support obligation. First, the support order itself contemplates only limited circumstances in which the obligation ceases, none of which have occurred. And second, a gender transition after divorce cannot invalidate a marriage ex post facto. Though no court has squarely addressed the question, it is plain as day that, like any other prerequisite for marriage, the sex criteria must be met at the time of marriage, but a change of circumstance later has no effect.

If you are a minor who marries with your parent's consent, and after the wedding your folks have regrets, that does not invalidate your marriage. If you marry while competent but become incompetent, that does not invalidate your marriage. And if you marry while female and become male, that does not invalidate your marriage. The same result should be found whether the transition occurs during the marriage or after divorce -- or else there are a lot of potentially invalid marriages out there.

This case is the natural inverse of M.T. v. J.T., 355 A.2d 204 (N.J. Super 1976), in which a husband could not escape his obligations on the basis that his ex-wife had once (prior to their marriage) been male. Because the sex change there occurred before the marriage, the court was called upon to decide its validity and did so. Because the marriage was valid, the support obligation was, too. The same is true in this case (where the transition is in the "opposite" direction), precisely because the gender transition occurred after the marriage.

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