An interesting story from another state raised questions of guardianship and divorce as well as the status of a marriage after one spouse has undergone gender reassignment. Guardianships and family matters may intersect more as the Baby Boom generation ages. The gender reassignment question is particularly enlightening for states like Illinois that do not recognize same-sex marriage.
The written opinion gives very little detail about the events leading up to the court actions. In 1984, the couple married. The opinion gives their full names, but we will refer to the wife here as DPB and her husband as BEB. In 2003, BEB underwent gender reassignment surgery. In 2005, BEB drove DPB to visit her adult children. DPB never returned to the couple's home, and the couple never lived together again.
At some point, DPB developed dementia. Her children were appointed her guardians. Eventually, they filed for divorce on her behalf. BEB filed a motion for summary disposition -- that is, a motion for the judge to dismiss the case -- arguing that guardians could not file for divorce on behalf of an incapacitated individual.
That argument failed. The trial court ruled that the law of that state, in fact, specifically allowed conservators and guardians to step into their wards' shoes and file for divorce.
The matter was not closed, though. BEB argued that the court itself did not have authority to consider the divorce petition because the marriage at the time of the divorce would not be recognized by the state. While the couple married as man and woman, they were now woman and woman, BEB said, and the state did not then (and does not now) recognize same-sex marriages. Therefore, the court could not dissolve a marriage that the state did not recognize.
The trial court disagreed. The marriage was valid when the two were wed, the court said, and the gender reassignment alone cannot invalidate it; the rights and obligations that come with marriage do not disappear on the basis of what the court referred to as BEB's "post-operative status."
BEB appealed both rulings. The appellate court recently upheld the trial court's decisions. Sadly, DPB passed away before the appellate decision was handed down.
Remember, this case is not from Illinois. Marriage and divorce laws -- both statutes and case law -- differ from state to state, so the outcome here could have been different.
Source: Courthouse News Service, "Sex Change Didn't 'Magically Dissolve' Marriage," Jeff D. Gorman, April 19, 2013