The case of an Arizona man seeking a divorce from his wife has encountered difficulty based on conflicting provisions of state law. The husband in the case, Thomas Beatie, is a transgender man, having been born a woman and transitioned to male through a variety of means. He obtained legal documents stating that he is a man, and he legally married his wife. He considers himself the father of his three children, but he, rather than his wife, gave birth to them, since he still has female reproductive organs. This has created a dilemma for the judge presiding over the couple's divorce, as Arizona law does not recognize same-sex marriages, and it is not clear if the state recognizes the validity of a marriage between a transgender man and a woman.
Beatie began the process of transitioning to male in 1997, when a psychologist determined that he had "male gender identification." He underwent testosterone therapy, and had his first of a series of surgeries in 2002. Arizona law allows a person, after a sex change operation, to obtain a new birth certificate and other official documents upon written request. After the first set of surgeries, he legally became a man.
He began dating his soon-to-be ex-wife, Nancy, in 1998, and they were married in 2003. Nancy was unable to have children, so Thomas bore all three of the couple's children. He made headlines as "The Pregnant Man," giving birth to children in 2007, 2009, and 2010. The couple separated in early 2012, and filed for divorce in Maricopa County Superior Court.
The divorce case reportedly involves issues of property division, child custody, and spousal maintenance. The biggest question for the judge, however, may be whether he even has the authority to grant them a divorce. Arizona state law expressly provides that any marriage between people of the same gender or sex is “void and prohibited.” Arizona Rev. Stat. § 25-101(C). The state does not recognize same-sex marriages performed in states where the practice is legally recognized. While California allows for domestic partnerships between people of the same sex, current state law similarly restricts marriage to a man and a woman.
The judge presiding over the case stated that he is not certain whether or not he has jurisdiction over the marriage. The parties were prepared to enter an agreement last summer when the judge contested it himself. He reportedly asked the state attorney general for an opinion as to whether the Beatie’s marriage is valid under state law or not, but the attorney general opted not to provide an opinion. The fact that Beatie gave birth to his three children appears to be the complicating factor for the judge, who noted in the court record that Beatie is the child’s “biological mother.” As such, the judge views the marriage as between a woman and “a person capable of giving birth.” At a hearing in mid-December, he stated that he still has not reached a decision, and asked for briefs from both sides arguing why he has jurisdiction.
Thomas Huguenor, a divorce attorney certified in family law by the State Bar of California’s Board of Legal Specialization, has 35 years of experience guiding the people of San Diego through the family law process. For a free and confidential consultation, contact us online or at (858) 458-9500.
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Maryland Court Allows Divorce of Same-Sex California Couple, Does Not Allow Same-Sex Marriage, San Diego Divorce Attorney Blog, June 21, 2012
"Poster Couple" for California Same-Sex Marriage Files for Divorce, San Diego Divorce Attorney Blog, February 22, 2012