Issues in Transgender Family Law

A transgender person may find it difficult when it comes time to get married or divorced. Most laws do not take into account the identity of a transgender person.  A person’s identity can play a large role in the world of family law. 

Ultimately, the validity of a transgender’s marriage is viewed in relation to each state’s recognition of same sex marriage. While Illinois recognizes civil unions, the state does not recognize marriage between parties of the same sex. Those marriages are considered “prohibited” and thus invalid.

Therefore, for purposes of entering into a marriage, a transgender person must discover whether they are considered, legally, their pre-transition sex or post-transition sex.

In some states, courts have upheld post-transition marriages where a different-sex spouse legally changed his/her sex and then married his/her different-sex partner. In these cases, the courts acknowledged that the person is able to legally change their gender and therefore able to marry a person that would otherwise be of the same sex. In opposite, some states have concluded that a person’s birth sex is unchangeable and therefore a post-transition person cannot marry a person who originally was the same sex. Illinois edged closer to this second line of reasoning in 2005 with the Illinois Appellate Court’s decision in In re Marriage of Simmons.  In Simmons the court invalidated a marriage entered into between a transgender male and female. The court found the husband was legally female.  In its decision, the Court did mention that the husband had not undergone a “full” transition, leading to the conclusion that the court may have found the marriage valid had their been a full transition.

-Emily Rapp

If I Were King Part II

If I were king, I would change the law that prohibits a judge from granting time-limited maintenance. Under the current scheme, a trial judge may not order maintenance for a term certain; rather, all awards are subject to a review and/or modification.

Philosophically, I am a judicial discretionist. I generally believe that it is best to give judges flexibility in crafting fair solutions. And each case is unique. Many times it would make sense, for example in a short marriage, to grant one or two years of maintenance without keeping the door open for extensions down the road. Or, what about the situation where the husband has been paying for ten years and the judge really doesn’t want to end it outright but wants to give the ex-wife a lump sum payout instead? Theoretically, under the current scheme, the trial judge may not do this and must keep the maintenance open-ended.

For the most part we are blessed with smart and fair judges.  Don’t tie their hands. Give them the power to do the right thing, and they usually will. And when they don’t, that’s why we have appellate courts.

Lawyers

"True, we build no bridges. We raise no towers. We construct no engines. We paint no pictures- unless as amateurs for our own amusement. There is little of all that we do that the eye of man can see. But we smooth out difficulties; we relieve stress; we correct mistakes; we take up other men's burdens and by our efforts we make possible the peaceful life of men in a peaceful state."

- John W. Davis

Conflict Diagnostics and Improving Kane County Family Court

Ron Ramer (a trained mediator and educator) and I spent the past several years developing a program to help Kane County family court work more efficiently and concentrate resources where needed. We pitched the program to the Kane County Bar Association family law committee. Unfortunately the committee rejected this concept, largely because of a few vocal opponents to change; but it really is an idea worth exploring.

Here is how the program would work. The parties and their attorneys would meet with a facilitator early in the case and the facilitator would “diagnose” the level of conflict. The facilitator would categorize the conflict as follows:

 

•    Low conflict: the parties were amicable and could agree on the most of the issue
•    Medium conflict: the parties were reasonable and while no agreement was imminent, mediation or negotiation would likely conclude the case
•    High conflict: For any number of reasons, the case was   volatile, very contentious and would need ample court resources

The facilitator, after diagnosing the conflict, would report to the trial judge who could better allocate resources to those in the high conflict range. The added benefit of the program is that the court could insist that the low conflict cases conclude more quickly, freeing up resources to concentrate on the higher conflict families.   By freeing up space on the docket, the court could micromanage the high conflict cases and move those cases through the system more promptly. Children are victims of their parent’s conflict, and accelerating the process will help these children start healing sooner.

It is too bad that the KCBA family law committee did not recognize the importance of this worthy goal.  I am working on article that will discuss this concept in more detail.

Thanksgiving and Gratitude

Thanksgiving and the holidays can be lonely times for divorcing people. And often the loneliness manifests itself as anger against their spouse or ex spouse. No doubt, divorce is painful and destructive; but instead of focusing on loss, focus on opportunity.

• Be grateful for what you have and don’t focus on what you are lacking.
• Concentrate on your challenges as positives and the rewards of meeting and overcoming them.
• Remember that all emotional pain is temporary and there will be sunnier days ahead.
• Live the axiom, “success is the best revenge.”
• Don’t idealize life­­––it is inherently full of struggles and discomfort. Make the most of things as they are, not how you want them to be.
• Remember that as bad as you feel, many people have it much worse.
• Find comfort in faith.
• Remember Steven Still’s 1960’s anthem, “If you can’t be with the one you love, love the one your with.” Enjoy yourself despite missing your kids.
• Remember, problems always look smaller after a warm meal and a good night’s sleep.
• Laugh a little! Its going to be OK :)

Happy Thanksgiving from the Peskind Law Firm.

What would Atticus do?

I just got my tickets to see "To kill a Mockingbird" at the local IMAX theater. I have seen the movie 100 times but never at a theater, much less an IMAX. After I got my tickets I started reflecting on the draw of this film. What is it about this movie that is so compelling? Obviously, a great morality play is at the heart of the story. This is probably why I love westerns as well; there are clearly defined good guys and bad guys. 

But there is more here in the character of Atticus Finch. I suppose what keeps drawing to this film at this point in my life is a desire to emulate Mr. Finch. I know I am not alone and people worldwide have been drawn to this character. He stands for all that is right and true, something we would all like to be.  He does the correct thing, regardless of personal cost. Atticus deals with problems quietly and with dignity. He confirms that strength and kindness are not mutually exclusive. And while he is slaying dragons during the day, his ultimate joy comes from his children.  I guess remembering this from time to time helps keep me centered in my world of perpetual conflict. Thank you Mr. Finch!

Abraham Lincoln, Esq.

I'm reading a book about the legal career of Abraham Lincoln. The book, Abraham Lincoln, Esq. edited by Roger Billings and Frank J. Williams, consists of a series of essays about particular aspects of his practice. In some ways very little has changed about the practice of law. I was surprised to learn that he did quite a bit of family law, but his primary core practice was  debtor/creditor law. Here is a quote that I appreciated:

" Day in and day out, Lincoln stared at the heat and friction created by the failings of human beings at war with one another. In a sense, he witnessed over five thousand little civil wars before he got to the big one in 1861. Lincoln was for all these people a lubricant: he allowed business relationships, families, friendships  and so forth to function without overheating, without seizing and locking up." (From Chapter entitled A. Lincoln, Respectable "Prairie Lawyer." by  Brian Dirck)

The author goes on to discuss how Mr. Lincoln and the law allowed the Illinois economy to grow because the law as the "grease" of the developing Illinois economy. Dirck continues:

"Heavens knows this probably was not a pleasant way to earn a living, though to his credit there is no record of Lincoln's ever grumbling about his lot in life as 'grease.' Bit pleasant or not, it was great education into the ways people interacted with each other."

How the practice of law influenced Lincoln and made history fascinates me.