Is Gender Reassignment Grounds for Divorce in Virginia?

We received an interesting call from a prospective client this week regarding the recent media coverage of Bruce Jenner. For those of you smart enough to stay away from gossip columns covering the circus performances by the Kardashians, you may not have heard that Bruce Jenner has publicly announced that he will be undergoing the official process of becoming a woman. Is gender reassignment grounds for divorce in Virginia? What aboutBruce Jenner’s divorce?

For a free publication regarding divorce in Virginia, the Family Law Section of the Virginia State Bar has a fairly comprehensive brochure, which you can access here.

To answer the question whether gender reassignment may be grounds for a divorce or annulment in Virginia, we need to look at specific examples of divorces in case law. There is not much in the way of specific cases involving one spouse filing for a divorce in Virginia or annulment in Virginia because of gender reassignment (sex change). So, without much in the way of cases, we’ll need to look at the Virginia divorce statutes. According to Section 20-91 of the 1950 Code of Virginia as amended, grounds for divorce in Virginia include the following: adultery; certain unknown, felony convictions; cruelty; abandonment or desertion; or living separate and apart for at least one year (or six months in some cases), without interruption.

If adultery didn’t occur, possibly, one spouse could claim abandonment or desertion as a precursor to gender reassignment. Fault may be important, as you may know, in cases where spousal support, child custody and visitation or property are issues. To make a convincing argument in Virginia that your spouse is guilty of abandonment or desertion based on gender reassignment or a sex change, you need to prove that the abandoning spouse intended to abandon or desert the “innocent” spouse and that he physically left the marriage. After one year of desertion, a court can grant the divorce based on desertion, if the innocent spouse can show both the intent to desert and physical abandonment.

Another unique issue that can arise in any marriage, including a marriage where one spouse wants to undergo a sex change, is whether the other spouse (non-sex-change-spouse) can file for divorce without being guilty of abandonment. In other words, are you required to support your spouse during a sex change? Presumably, homosexuality is a fault-based ground for divorce if the spouse committed adultery with another person of the same sex because of the Virginia statute forbidding sodomy outside of marriage.

What are your thoughts? Should gender reassignment be a valid reason for divorce in Virginia? Does one spouse have a duty to remain loyal to another spouse undergoing a sex change in Virginia?

Fairfax Family Law and Divorce Lawyer: If you’re looking for an experienced Virginia family and divorce law attorney, contact Keithley Law, PLLC, PLLC today by calling (703) 454-5147and schedule an initial consultation in our Fairfax law office.

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