California Family Law Attorney
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December 21, 2010
  We Married As a California SAME-SEX Couple But Since I Have Completed My SEX-CHANGE OPERATION.
Posted By Thurman Arnold

Q. I was married in June, 2008 as Patricia B. to Jill G. I obtained a name and gender change court decree several months later. We now want to marry as a different-sex couple. Do we need to first dissolve the same-sex marriage?

Thanks for a challenging and specialized question which I don't normally encounter in my practice. It sounds like you are two of the 14,000 same-sex couples who married in California 2008. I can only give you impressions before researching a couple of issues and hence do my best to assist you now without more information that I would require to give a legal opinion. I don't want you to rely on this response without more, plus I don't intend by responding to your email to create an attorney-client relationship, which is true with all my writings.

First, I'm assuming that Patricia B. is your birth name, or that you had previously obtained a name change whether by court decree or prior marriage. I say this because Family Code section 354 (dealing with marriage licenses) requires a photo ID that accurately lists your given or subsequently legal name so I expect that is what you presented to obtain the license.

Second, your existing marriage to Jill is valid at least as of the date of marriage, for all statewide applications under California law. It is hard to imagine that your post-marriage gender operations (and hence post-marriage gender status as a male) in any way changes that. It makes me wonder what happens to an opposite sex couple where one subsequently completes the procedures that you have undertaken (i.e., opposite genders marry, but then one changes their gender so they are both now the same-sex) - would that invalidate the marriage? Complicated stuff.

Third, no California statute speaks to gendered changed individuals as qualifying as a man (in your case) for purposes of marriage, where they were born as a woman, for purposes of Family Code 300 or the amendment to the California constitution (Proposition 8) that occurred after your marriage. This means to me that it would require an appellate decision (or legislative enactment) to provide such authority and I can't tell you of any specific California case that has so found but, again, I've not researched it in detail. If California does accept your sex change as legally making you a male this would improve your position under federal law, discussed below. Do you have an affidavit from your doctor verifying that the surgery changed your sex designation? Have you investigated amending your birth certificate? I recommend it. The legal viability of sex change is a matter for states to determine, according to the 10th Amendment of the United States Constitution.

Fourth, I would be concerned that dissolving your existing marriage without a clear understanding of these issues could place you at risk in the sense that, at least as of today, you can't remarry Jill IF you are legally a woman. Hence, I would be very careful about dissolving your existing marriage. You would have exactly the same rights in California as a same-sex married couple as you would as domestic partners. However, if you dissolved the marriage, didn't entered into a RDP, and then some court ruled later that your remarriage was not legally valid you would have no legal status other than possibly as a "putative" domestic partner or spouse. This could negatively impact your legal rights and responsibilities, and increase litigation costs, should the relationship end.

Fifth, at this time, federal law especially as it relates to tax filing status, isn't bound by any state's statutes and doesn't recognize same-sex marriage for that purpose and a number of others. This results from the Federal Defense of Marriage Act and a history of gender prejudice, among other things.

I also don't know whether federal law recognizes the gender change as making you a male since your sex-change operation (but it might, as discussed above). I am aware of at least one federal administrative case that suggests that if California recognizes your sex change operation, you might qualify as an opposite gendered person under federal law at least for some purposes (i.e., interpreting immigration rules and statutes per In Re Lovo-Lara).

Sixth, I can't see how remarrying under your new name, and post-surgery, would add anything to the mix, legally speaking. You have changed your name and so Jill is now married to Alex. The only area where it seems it might matter from a legal perspective is qualifying for some status or benefits under federal law. It doesn't add anything in California for you to divorce and remarry under your current name and gender. I recognize you haven't asked about federal legal status and this may be irrelevant to you, and I don't pretend to be an expert on federal law.

Seventh, I do understand why you would want your different sex status to accurately track reality, and that that reality did shift after your marriage by reason of the surgery. You and Jill are proud of what you both have accomplished, and I imagine you would like to share the equal dignity historically only accorded to opposite-sex couples by having your status accurately recognized.

Finally, my feeling is that your transformation is complete and that you need do nothing further, but I respect that you may feel that it is only partial. If it is essential that the two of you be legally recognized as an opposite sex married couple, then the answer lies with California law, at present in terms of judicial interpretations and not legislative enactments. My brief investigation does not reveal any California appellate decisions or statutes that answer the question. Unfortunately, the type of legal issues that you are grappling with tend only to arise upon a divorce or nullity of marriage proceeding, where courts are squarely forced to decide the issue, which is not my wish for you. Sometimes people file sham divorces to create new law, but this is not something I would ever recommend.


I cannot resist speaking to your situation as a metaphor for all of us. My belief is that until we each expand beyond our myopic judgments of what others should choose for themselves our internecine cultural, gender, familial, racial and nationalistic struggles will escalate. Mind you, any student of human history knows that such is part of our collective personality structure - that we ban together against 'outsiders' to protect our group - and possibly this trait is even a reason for our success as a species thus far, if not for the "others" who were sacrificed. In an increasingly crowded and heterogeneous world the things that worked before may presently assure our common peril.

Pioneering such as yours challenges us to rethink our biases, and sometimes even to consider that they might only be artificial points of view 'full of fit and fury, signifying nothing.' We can just as easily hold a belief with righteous self-certainty one day only to hold its opposite to be true with equal earnestness the next (or simply recognize that we were mistaken in the first instance). In my experience as a family attorney who has listened to countless individuals express what they think went wrong with their marriage or domestic partner, and in the course of my own life, I am always humbled how little we and I know 'for sure' and how the "truth" shifts from moment to moment. When we misplace humility we tend to become fixated on forcing others conform to our expectations - inevitably leading to conflict.

Our brains may actually be hard-wired to hold biases. Most people recognize they have little control over the thoughts that pop into our minds. I suspect that we don't lose biases as an effort of will, but instead that they fall away as part of a larger process. Until they do fall away, the trick may be simply to remember to distrust these thoughts and not to believe they are true simply because they arose. Certainly that strategy might relieve the emotional component to prejudice.

All beings desire peace, and freedom. May each of us find it in our own way. But perhaps the web of our interdependence requires that we allow others to do so, first..., I don't know, dear reader. What makes sense to you?

T.W. Arnold

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September 16, 2010
  My Wife is Living With a Male Renter - Does This Affect My SUPPORT OBLIGATION?
Posted By Thurman Arnold

Q. If my wife is living with a male renter, and I suspect they are boyfriend-girlfriend, does this affect the amount of spousal and child support that I have to pay?

A. The supported party's cohabitation with a person of the opposite sex gives rise to a rebuttable presumption affecting the burden of proof of decreased need for spousal support. FC § 4323(a)(1). It has no impact on child support obligations, however.

FC § 4323 states:

(a)(1) Except as otherwise agreed to by the parties in writing, there is a rebuttable presumption, affecting the burden of proof, of decreased need for spousal support if the supported party is cohabiting with a person of the opposite sex. Upon a determination that circumstances have changed, the court may modify or terminate the spousal support as provided for in Chapter 6 (commencing with Section 3650) of Part 1.

(2) Holding oneself out to be the husband or wife of the person with whom one is cohabiting is not necessary to constitute cohabitation as the term is used in this subdivision.

(b) The income of a supporting spouse's subsequent spouse or nonmarital partner shall not be considered when determining or modifying spousal support.

(c) Nothing in this section precludes later modification or termination of spousal support on proof of change of circumstances.

As stated in Marriage of Schroeder (1987) 192 Cal.App.3d 1154, 238 Cal.Rptr. 12,

"the policy underlying section 4323 is a legislative acknowledgment that cohabitation may reduce the needs of the supported spouse. The arrangement between Wife and Lara elevates form over substance. By receiving reimbursement by way of 'gifts,' Wife's cash needs for support purposes appear unchanged despite cohabitation. While cohabitants are at liberty to deal with each other as they see fit, their 'contract must be fair and reasonable with respect to the rights of [the] supporting spouse.' The trial court here failed to recognize that the allocation of expenses between Wife and Lara undermines the statute and acts to Husband's detriment.

The record strongly indicates Wife's needs have decreased as a result of cohabitation. We remand to the trial court for a factual determination of the extent of her reduced need, with due consideration for the value of the benefits received by her, as well as the value of the benefits conferred upon Lara."

Schroeder involved a post judgment modification of a permanent support order by the payor, not an initial pendente lite request by the supported spouse. The evidence was the former wife had been living with a man of the opposite sex for 18 months, that he didn't pay rent, that he was regularly employed, that he did not contribute to utilities, but that he did contribute to joint vacations. The appellate court found those facts to strongly suggest a cohabitation. Even then, the issue on remand was not a termination of the support obligation but a determination of the value of the benefits incurred by the former wife which might reduce her needs.

Cohabitation has been loosely defined as not necessarily holding oneself out to be Husband and Wife, but is more than a simple roommate or "boarding arrangement." There must be a showing of a sexual, romantic or at least a "homemaker-companion" relationship. Marriage of Regnery (1989) 214 CA3d 1367, 263 CR 243.

Marriage of Geraci (2006) 144 Cal.App.4th 1278 reversed a trial court failure to consider the effect of an admitted cohabitation lasting several years with the following comments:

The court's judgment also does not take into consideration the evidence Jane had been cohabiting since the parties separated in 2000, despite John's requests for findings on the issue. Section 4323 states "there is a rebuttal presumption, affecting the burden of proof, of decreased need for spousal support if the supported party is cohabiting with a person of the opposite sex. . . . "Cohabitation may reduce the need for spousal support because 'sharing a household gives rise to economies of scale. [Citation.] Also, more importantly, the cohabitant's income may be available to the obligee spouse.' (In re Marriage of Schroeder (1987) 192 Cal.App.3d 1154, 1159 [238 Cal.Rptr. 12].)"[32] "[T]he Legislature created the presumption . . . based on thinking that cohabitation . . . creates a change of circumstance so tied in with the payment of spousal support as to be significant enough by itself to require a re-examination of whether such need for support continues in such a way that it still should be charged to the prior spouse." [Italics added].

* * *

At trial, however, Jane testified she had no intention of marrying him. Jane's father, by contrast, testified he hoped they would soon marry. The evidence showed her boyfriend supplied Jane with housing, with a leased car and a credit card in her name for her use. Jane testified she was supposed to pay him back for all her expenditures, including the equivalent of $1,000 a month for rent, whenever she became financially able to do so. She testified she then owed her boyfriend more than $30,000 in back rent, credit card and other debt. According to Jane's evidence, she contributed to the household by providing domestic services.

The foregoing is substantial and material evidence Jane was cohabiting within the meaning of section 4323 and might have a lesser need for spousal support than the court awarded had it considered this circumstance. However, there is nothing in the record to indicate the court fairly considered Jane's cohabitation when determining the type and amount of spousal support to award her.

In Marriage of Bower (2002) 96 Cal.App.4th 893,117 Cal.Rptr.2d 520 there were two permanent support modification hearings filed by the payor husband, one held in 1997 and the second in 2000. At the 1997 hearing the evidence was that the Wife was sharing expenses and living full time at a residence with a man described as a 'roommate.' The Bower court noted that the Husband had been wise in not appealing that order. However, by the time of the second application over three years later in 2000, there was evidence that she was sharing at least one bank account with her "roommate," and she even stipulated she was cohabiting.

Under those circumstances, together with evidence of an increased income from her employment, it was not an abuse of discretion to reduce the Wife's spousal support and then terminate it at the end of one year.

Bower and those cases cited herein regarding cohabitation are dealing with modifications of Permanent Spousal Support orders. They all are based upon the "two can live more cheaply than one" theory or upon actual expenses of the supported party being regularly paid for by the cohabitant beyond loans and gifts. There is no reported case that upholds a trial court refusal to provide spousal support at the temporary hearing stage. However, I suspect most courts will apply the presumption there as well.

The philosophy underlying the cohabitation statute is that parties who share a household and live in a meretricious relationship should not benefit by continuing to receive spousal support without consideration of the reduced need this sharing produces.

Finding cohabitation just allows for the aid of a statutory presumption to assist in the presentation of factual evidence. The effect is the same without the presumption even for mere roommates, as those contributions to the obligee's living expenses may also support a factual finding sufficient to modify spousal support since rent is income.

Nonetheless, cohabitation is offensive to some judges and they be willing to terminate the spousal support obligation instead of merely reducing it.

Note that once you prove a cohabitation the burden of proof shifts to the supported party to show that they still need support. That is their problem, not yours. Nonetheless, if you can show a substantial reduction or the end of any need for alimony you would be well advised to present that evidence.

Finally, you are not entitled to know the income of the other party as new-mate income cannot be considered by the Courts.

For domestic partnerships, even though the statute speaks in terms of opposite sex couples it is highly unlikely that a trial court would not reduce or terminate partner support with a same-sex couple where male former partner is cohabiting with a male and so on. Since 2005 the California Family Code is to be interpreted as applying equally to same sex couples who are in a legally recognized relationship.

If a gay man (as opposed to bi-sexual male) is now living with a female should the opposite sex presumption be applied? The answer would seem to turn on whether the relationship is romantic and/or intimate and not on the identity of genders. Similarly, if a former wife is now living with a female roommate and it can be established that relationship is intimate, then the same reasoning as in the above cases will likely apply. We await appellate court pronouncements on these interesting questions.

[Note, four years later, in July, 2014, Family Code section 4323 was amended to strike the "person of the opposite sex" language and replacing with the phrase "nonmarital partners." - TWA]

Thurman W. Arnold III
September 16, 2010

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