Same-sex couple struggles to divorce, hits legal roadblock

Virtually all of America has become embroiled in the debate over the rights of same-sex couples to marry. When considering the issue, the focus is on the rights of people who love one another to form legally binding family units that share the same rights enjoyed by heterosexual couples. It is often forgotten that other legal rights are also connected to the right to marry in Massachusetts, namely, the right to divorce.

When a same-sex marriage is solidified in one state, and the couple chooses to reside in a different state, the divorce process can become complicated. That is because states that do not recognize same-sex marriages have no legal basis to issue same-sex divorces. This scenario is currently being played out in a widely covered divorce case involving a transgendered man and his wife.

The couple made the news previously due to the fact that the husband, who has undergone hormone therapy and has had his driver’s license changed to reflect his status as a male, made the decision to give birth to the couple’s three children. Multiple television appearances and a book deal followed. When the couple decided to divorce, they encountered difficulty when the family court judge raised questions about the nature of their marriage.

At issue in the case is whether the husband is to be legally considered a man or a woman. The issue is further clouded, at least in the mind of the judge, by the fact that the husband has gestated three children during the course of the marriage. A decision in the matter is expected in early February.

This case, while unusual in terms of the details, is demonstrative of the wide range of legal issues that can accompany same-sex marriage and divorce. In this instance, gender identity may determine the eventual outcome, as well as which party has the right to determine that identity. For same-sex couples who wish to dissolve their marriage, the best course of action is to gain full and current knowledge of their rights under Massachusetts law.

Source: The Huffington Post, “‘Pregnant Man’ Thomas Beatie’s Divorce Stalled,” Jacques Billeaud, Dec. 31, 2012

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