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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May 17, 2010
  My husband was HOSPITALIZED after we SEPARATED; am I liable for the bill?
Posted By Thurman Arnold

Q. After my husband and I separated, he was hospitalized and incurred $28,000 in medical bills. The creditor is threatening to sue me. Am I liable?

In a recent appellate decision out of San Diego County (CMRE Financial Services, Inc. v. Parton), the wife called police after an incident of domestic violence and shortly thereafter filed for DV restraining orders. A week later the parties separated, and the husband was admitted to Tri-City Medical Center for treatment for a severe emotional illness. He incurred substantial medical bills.

The wife filed a dissolution action three months after that. In her Schedule of Assets and Debts she listed the debt as owed by her husband. A judgment for dissolution came to be entered several months later, and it did not assign the hospital obligation to the wife. It appears to have been a default judgment against the husband.

CMRE, the assignee of Tri-City Hospital, sued both the husband and wife to collect the money for husband's treatment; by then husband had disappeared and was never served with the lawsuit. Wife responded by denying liability, and with a cross-complaint that alleged that by sending her collection notices CMRE had violated the provisions of the Fair Debt Collection Practices Act (Title 15, United States Code section 1692 et seq.), and that she should obtain damages against them.

CMRE filed a motion to toss out the cross-complaint, relying on the language of Family Code section 914(a)(2), which states that spouses are liable for debts incurred by the other when separated if these are for "necessaries of life."

The trial court agreed with CMRE, and the matter proceeded to a judgment against the wife for the full amount plus interest. Wife appealed.

Once a Dissolution Judgment is Entered, Liability for Spousal Debts Ends

The appellate court ruled in favor of wife, and reversed the trial court. Wife would have been liable for these medical costs IF a dissolution including property division had not been granted, or if the dissolution judgment had assigned the debt to her, or if she had agreed to support her estranged husband while they were separated. For instance, if the parties had reconciled and if CMRE had sued the wife and obtained a money judgment against her, she would have been on the hook. But once a dissolution judgment was entered that did not assign the debt to the wife she was protected. Family Code section 916.

The appellate court also noted that an independent basis for holding wife free of the debt included Family Code section 4302 which states that a person is not liable for the support of their spouse when the person is living separate from the spouse by agreement, unless the agreement calls for support. The court reasoned that while the starting point is that spouses are liable for the other's necessaries while living separately that rule will not apply where they are separated by agreement (apparently the agreement can be verbal or implied from conduct), unless the agreement includes a promise to support the other.

This appellate decision seems confusing because the language of the statutes themselves conflict. The court continued by noting that the legislature has declared that one spouse's liability for the other spouse's post-separation necessaries is entirely derivative of the fact of marriage and not the same as a debt personally incurred by the supporting spouse. This means that "the liability imposed by section 914 can be avoided by the simple expedient of entering into a separation agreement which does not provide for support."

The only exception might be where a creditor alleges a marital settlement agreement violates the Uniform Fraudulent Transfer Act. CMRE did not allege any fraud between these spouses.

This is landmark case because up to this point most lawyers and judges believed that spouses were liable for the necessaries of life of the other, even after separating, and that this was a special exception to the general rule that once spouses separate liability for debt ends.

Now we know that you have at least two ways to avoid this debt: (1) Obtain a Judgment for Dissolution before the creditor obtains a civil judgment against you, but be sure that the debt is assigned to the other spouse; and (2) be sure that you don't have an agreement to support the other spouse in place, at least at the time the debt is incurred. The judgment can be based upon a marital termination agreement.

If you pretend to separate, or separate just to avoid the debt, and if the creditor claims you did this fraudulently to avoid liability, the outcome might be different.

One additional point of information: Under the circumstances of this case, CMRE was found to have in fact violated the federal Fair Debt Collection Practices Act just by sending threatening letters, and of course by filing suit. Knowledge of this case can be used to back off creditors who are harassing you.

Thurman W. Arnold III, CA Family Attorney

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April 07, 2010
  When I get MARRIED, how do I avoid my husband's DEBT?
Posted By Thurman Arnold

Q. If I marry is it possible to avoid any of my fiancé's debt liability?

Yes. First, your separate property doesn't become liable for a spouse's premarital debt simply by marrying. But community property as it comes into being does.

Secondly, to the extent you or your spouse will incur debt during marriage, prior to marriage both can agree to eliminate or restrict the creation of community property as between you. This is accomplished through a prenuptial or premarital agreement. Essentially you agree to restrict or eliminate the creation of community property in the first instance, since that will remain liable for debts incurred prior to (with some exceptions) and during the marriage, and so you can ensure that your separate property remains protected.

None of this applies to debts you jointly incur - the joint credit card, the jointly purchased car, or the jointly refinanced home. This is why creditors try to insist that both spouses sign loans.

But you can modify your behavior in order to protect yourself by not signing. It is possible to enter a post-nuptial agreement which achieves substantially the same thing, although it won't necessarily change the character of debt incurred prior to its signing but it may nonetheless eliminate future community debt by eliminating community property. Remember, as between the two of you, you cannot affect third party's rights who are not parties to your post marital agreement, and to do so may be considered a fraud upon creditors which means the agreement may be set aside and voided.

Thurman W. Arnold III
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3 entries found. Viewing page 1 of 1.