Getting a divorce is already challenging enough. Throw being transgender into the mix, however, and the obstacles you face separating from your spouse may increase tenfold. Here are two problems that may develop during the proceedings you should be aware of so you can plan your moves accordingly.

1. Spouse May Attempt to Invalidate the Marriage

One tactic some spouses in marriages to transgender people is to have the marriage annulled instead of initiating divorce proceedings. If the person is able to do this successfully, the marriage would be declared void and the affected spouse would lose any rights to marital assets, spousal support, and other benefits the individual is due because of divorce laws.

You may think that because same-sex marriage was legalized on June 26, 2015, that your spouse wouldn't be able to get away with that. However, if you got married before that date in a state that banned same-sex marriage, your spouse could make a credible case that your marriage was illegal if you and the person were the same biological sex when you wed, regardless of your gender expression at the time. 

Even if you used legal documentation (e.g., birth certificate or driver's license) stating your preferred gender, some states will make the determination based on the sex you were born as rather than the one you transitioned to.

Unfortunately, the only way to prevent your marriage from being annulled in this way is to convince the court to accept your gender expression at the time you were married rather than what you were born as, which can be extremely challenging in some areas. It's best to consult with a knowledgeable attorney who can help you put together a strategy that may help you win in court.

2. You May Have Difficulty Obtaining Custody of Children

Although society is changing, there are still people who consider transgenderism to be a mental illness and, unfortunately, some of those people work in the court system. While the courts cannot deny custody of your kids to you based on your transgender status, you could be refused based on mental health concerns.

Courts rule according to what's in the best interests of the children, and the judge may feel that you being transgender is a sign of mental illness and that you are unfit to parent as a result. This is particularly true if you suffer from psychological problems, such as depression or bipolar disorder.

In this situation, you would likely have to prove you are mentally sound enough to care for your children, which will typically mean being evaluated by a mental health professional and having the person testify on your behalf about your fitness to parent. You may also need to submit studies to the court refuting the idea that transgenderism is a mental illness.

For more information about these and other issues you may face as a transgender person getting a divorce, contact a law office like Nichols, Speidel, & Nichols.