Legal Issues in Divorce for Transgender Individuals

Abstract

This chapter examines the legal issues faced by transgender people in divorce and child custody cases. Despite trans people’s increased visibility, and gains in legal rights and protections, many people—including judges—continue to harbor misconceptions about transgender people. Attorneys representing transgender clients must anticipate the possibility of judicial bias and take proactive steps to address it. Attorneys must be prepared for the unique legal issues that arise when a spouse transitions during an existing marriage. Even under modern “no-fault” divorce regimes, attorneys must be prepared to rebut the claim that coming out as transgender constitutes misconduct or justifies awarding the other spouse more marital property or spousal support. In custody cases, attorneys must anticipate and rebut misinformation and negative judicial attitudes toward transgender parents. Finally, even after Obergefell v. Hodges (2015), attorneys representing transgender clients who married before Obergefell must be prepared to explain why that decision is retroactive.