Gay marriage is a popular topic these days. People on both sides are making aggressive arguments, but regardless of politics, one thing is true: Michigan does not allow same-sex marriages. But what about same-sex divorce? The answer, it turns out, is all in your genes.
Michigan is one of many states that ban gay marriage. The Michigan Constitution was amended in 2004 to say:
“To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.” Art. 1 Sec. 25
A state statute goes further, saying:
“Marriage is inherently a unique relationship between a man and a woman. As a matter of public policy, this state has a special interest in encouraging, supporting, and protecting that unique relationship in order to promote, among other goals, the stability and welfare of society and its children. A marriage contracted between individuals of the same sex is invalid in this state.” MCL 551.1.
These laws could be affected by the recent Proposition 8 and DOMA cases before the Supreme Court, but right now the state will not recognize a marriage between two men or two women, even if it was validly performed in another state.
So what happens when those marriages break down? Most states require one of the parties to live in that state for some time (6 months in Michigan) before filing for divorce. Michigan will not divorce parties that were not legally married. Gay couples living in Michigan will therefore not be able to get a divorce here after they separate. Their only solution is to leave Michigan for 6 months or more.
But what about trans individuals? A Michigan Court of Appeals recently tackled this question. A man and a woman were married in Michigan in 1984. They remained married through the defendant’s male-to-female gender reassignment surgery. Then in 2003, the plaintiff’s guardians sought a divorce. The defendant claimed the Michigan courts did not have jurisdiction to enter a divorce because the marriage was now between two women, but the court looked at the genders of the parties at the time of the marriage. It said,
“Once validly entered into, one spouse’s actions cannot unilaterally result in the legal dissolution of the marriage without court involvement.” slip op. p. 7.
In a footnote, the court took a very limited, genetically based definition of gender. (That all men have X and Y chromosomes and all women have only X chromosomes). By doing so, it emphasized genetics over legal status and raised the question of whether a post-op trans woman could marry a woman in the state simply because she still carried Y chromosomes.
As the state and federal courts continue to wrestle with gay rights issues, the laws and procedures in these kinds of cases will continue to change and evolve. If these issues affect you, make sure you have a lawyer who keeps up with the law.