“My spouse has transitioned from one gender to another during our marriage, how does that impact our divorce?” For purposes of this question, I am assuming that the spouses were of opposite gender on the date of marriage, as the issue of same-sex marriage in Texas is best left for another entry and could confuse the issues here.
The truth is, that such a question depends on a very fact specific analysis of the history of your relationship, as is the case with almost every issue that can arise in a divorce.
If there are no children, then the answer is, there is not an impact based solely on the fact that your spouse transitioned. You and your spouse would be divorced, just as any other couple married in Texas. In regards to the division of property, transitioning alone is not a statutory basis for which a party could request the court to award a disproportionate share of the division of assets.
If there are children, then the answer is, there could be an impact. Just like any issue in a marriage with children, the court could take into consideration how the parties addressed such a transition with their children and/or the impact on the children. Although we have no caselaw in Texas regarding a custody dispute involving a transgender parent, it is important to note that the best interest of the child standard includes an examination of the following factors:
- Which party can best provide for the child’s physical, psychological, and emotional needs and development;
- The cooperation between the parents; and
- The child’s preferences.
These are just a few items that the court may consider, but should demonstrate why this is a case and fact specific analysis.
For more information, please consult an attorney to discuss the issue.