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Sex Change Does Not Invalidate Divorce

Clarkston Legal May 5, 2013

Of course, this case comes to us from Ann Arbor. Last month, the Court of Appeals decided a divorce case involving gender reassignment in a published decision.

In the case of In re Estate of Burnett, a couple had been married when Husband underwent gender reassignment surgery and became a woman in 2003. His Wife, who had apparently supported the M-T-F gender change, subsequently became incapacitated. Her children obtained a guardianship and conservatorship over their mother due to her dementia and filed for divorce on her behalf.

Doing some forum shopping, Wife’s children, as her guardians, first tried to file the divorce proceeding in Pennsylvania but they were rebuffed. Although the couple was married in Ann Arbor in the mid-1980s, they had lived in Philadelphia until Wife returned to her daughter’s home in Washtenaw County back in 2006.

Defendant-Husband argued before the Washtenaw Family Court that his gender reassignment rendered the marriage invalid as between a same-sex couple; Michigan outlawed same-sex marriages in 2004 by an amendment to our constitution. Husband also tried to get the divorce proceeding thrown-out on the grounds that a fiduciary could not file for divorce on behalf of a ward.

The family court judge denied both motions for summary disposition, ruling that the couple had entered into a valid marriage contract back in the 1980s, not a same-sex marriage contract. The Court of Appeals upheld the decision, stating:

We likewise reject Defendant’s argument that his alleged post-operative status somehow magically dissolves what was otherwise a valid marriage.

Nor did the Court of Appeals see grounds for an annulment of the Burnett marriage. Simply, Husband, even though now a woman through surgery, is out of luck.

In the meantime, Wife has since passed away so the case now has merely symbolic and precedential value. Even if the United States Supreme Court were to recognize same-sex marriages this spring as a component to our constitutional rights to privacy and liberty, the result in this case would be the same. As noted by the Court of Appeals, the unilateral acts of one spouse cannot render a valid marriage invalid.