Creating MarriageLike Relationships by Contract

chapter 1  | Defining Family |  27
marriage license, find an authorized person to perform the ceremony, and
bring two witnesses.
Some American governmental entities will recognize the marriage, and
some will not. Watch for this issue to reach the courts soon, along with
the issue of recognizing marriages (as well as domestic partnerships and
civil unions) from other states.
If you are married in Canada and you live in a U.S. state that
recognizes your marriage, you should also be able to get divorced in
that state using the same court procedures that opposite-sex spouses use.
However, if you live in a state that does not recognize your marriage, you
probably won’t be able to divorce there either. To get a divorce in Canada,
at least one partner has to live there for a year before filing a divorce
request.
Creating Marriage-Like Relationships by Contract
Even if you live in one of the many states where you cannot get married,
register as domestic partners, or enter into a civil union—or if you live
in one of those states and choose not to do any of those things— there
are ways that you can protect and affirm your relationship. By creating
an agreement tailored to your wishes, you can create a relationship with
many of the same rights and obligations that married couples have toward
each other, if that’s what you want. You can pick and choose which
benefits and obligations you want to take on, rather than being forced to
accept the whole package as you would be if you entered into one of the
available legal relationships.
For example, if you want to follow marriage rules when it comes to
managing your assets and property, you can prepare a written contract
stating that you agree to be bound by the laws of your state that govern
legal marriages, and share your income and property just as married
couples do. You can agree to provide for postseparation support by
contract, or provide for an equal division of property. It’s up to you.
Properly drafted and signed, these agreements are enforceable in court.
28  |  A Legal guide for Lesbian and Gay Couples
See an expert
Consult an attorney about which legal documents you need.
Depending on your financial situation and where you live, there may be some
documents you can prepare yourself, but you should get a lawyer’s advice in any
event. Some lawyers will prefer to spell out all the provisions in a comprehensive
contract, and other lawyers may choose to put your agreement in general
terms and then refer to your state’s marital law rules to cover any unforeseen
circumstances. Because the federal tax rules for married couples won’t apply to
your relationship, customized provisions on that subject will need to be included.
Resource
You can learn more about prenuptial agreements in Prenuptial
Agreements: How to Write a Fair & Lasting Contract, by Katherine E. Stoner and
Shae Irving (Nolo).
Some of the agreements you might choose are included in Chapters 7
and 8. Others are beyond the scope of this book, including complex wills
and trusts.
Special Issues When One Partner Is Transgender
For transgender folks, legal recognition of relationships can be a thorny
issue. For example, if an opposite-sex couple marries, and one partner
later transitions to the other sex, the partners are now of the same sex. Is
their marriage still valid? Or, if a same-sex couple registers as domestic
partners in California, where opposite-sex couples cannot register
(unless one partner is 62 or older), and then one partner later transitions
to the other sex, the partners are now an opposite-sex couple. Is their
registration still valid? Can they legally marry, and if so, must they end
their domestic partnership first?
The issues are complicated by the very nature of transitioning from one
gender to another—at what point in the transition does a person become
legally the other gender? Is it necessary to have sex reassignment surgery
to legally change gender? What identity documents are necessary to
confirm the gender change? How does the stage of the person’s transition
chapter 1  | Defining Family |  29
affect the issue of relationship recognition? Legal rules about these
questions differ from state to state.
Many married couples in which one partner is transgender live quietly
without any outside interference in their relationships. Legal problems tend
to arise when an employer challenges the marriage in order to exclude one
partner from a health insurance plan, or when one partner dies and the
other tries to collect survivor benefits or claim inheritance rights.
As far as we know, there are no court cases deciding whether a
marriage is valid after one person transitions to the other sex during the
marriage. But in many states, the validity of a marriage is determined at
the time the marriage is created—so if the spouses were different genders
when they married, their marriage should still be legal even if one party
transitions.
The Transgender Law Center recommends that couples in which
a partner is transgender take a few additional steps beyond getting a
marriage license. These include writing up and signing a Memorandum of
Understanding before the marriage—stating clearly that the partners are
aware of each other’s gender history and identity, and intend to be bound
by all marriage rules and laws, including those relating to parenting—
and prior to the birth of any children, creating a will or trust in favor of
the partner, and preparing reciprocal powers of attorney for health care.
A few courts have addressed the question of whether a marriage is valid
when one of the spouses has had a sex change before the marriage. The
results have been mixed: In California, New Jersey, and Louisiana, courts
have ruled that marriages where one party is transgender are valid. (M.T.
v. J.T., 355 A.2d 204 (1976)) (citations for the California and Louisiana
cases are not available).) At least one court in Australia has reached the
same decision. But in Florida, Illinois, Kansas, Ohio, and Texas, courts
have ruled the other way, finding that a person’s sex is determined at
birth, and the marriages were void because the partners were actually of
the same sex. (Kantaras v. Kantaras, (Fla. Dist. Ct. App., No. 2D03-1377,
7/23/04, reversing 2003 decision to the contrary); In re the Marriage of
Sterling Simmons, No. 98 D 13738 (Cir. Ct., Cook County, 2003); In
re Estate of Gardiner, 42 P.3d 120 (Kansas 2002); Littleton v. Prange, 9
S.W.3d 223 (Texas 1999).)
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The case of Littlejohn, however, was called into question by a recent
trial court case in Texas. In a divorce between a woman and a transgender
man, the wife tried to deprive the husband of his share of marital
property on the basis that their marriage was void. The judge dismissed
this claim, because the wife was aware of the husband’s transgender
status, and because he had completed his gender reassignment and had a
birth certificate and passport stating his male gender, both in place at the
time of the marriage.
In an Ohio case, a Court of Appeals upheld the state’s denial of a
marriage license to a couple because one partner was a female-to-male
transsexual. The court refused to honor the would-be husband’s amended
Massachusetts birth certificate showing his sex as male. (In re Application
of Nash and Barr, Ohio Ct. App., No. 2002-T-1049, 12/13/03.) And the
U.S. Citizenship and Immigration Services has denied legal residency
to a Filipino man who married a legal U.S. resident, because the wife is
transsexual—despite the fact that her citizenship documents list her sex
as female.
Resource
If you are a transgender person with a relationship recognition
problem, you will need further information and assistance. The Transgender
Law Center (www.transgenderlawcenter.org) can provide information and
referrals to knowledgeable attorneys.
Adopting Your Partner
A handful of couples, unable to marry, have used adoption to create a
legally recognized relationship for themselves. The primary purpose for
doing this is to guarantee inheritance rights between the parties.
Courts have allowed some adult adoptions between same-sex partners.
For example, courts in New York, California, and Delaware have allowed
same-sex adult adoptions in a few instances. A New York court, however,
has also denied a same-sex adult adoption application, holding that “the
evasion of existing inheritance laws” was a main purpose of the adoption.
(In re Adoption of Robert Paul P., 63 N.Y.2d 233, 471 N.E.2d 424 (1984).)