In a recent Ohio Court of Appeals' decision, the court concluded that the mere fact that the supported spouse has undergone a sex-change operation does not alleviate the other spouse's support obligation. In Moore v. Moore, 158 Ohio App. 3d 489, 817 N.E.2d 111 (2004), the parties' marriage was dissolved after 25 years. The final dissolution judgment ordered the husband to pay spousal support. The judgment also provided that the issue of spousal support was not subject to the court's continuing jurisdiction, except that the obligation would terminate upon the wife's remarriage or in the event of either party's death. The judgment also provided that the court could revisit the issue if the wife was cohabiting with an unrelated male.

Eight years later, the husband sought relief from the spousal support provision in the dissolution judgment on the basis that the wife had undergone sex reassignment surgery and was now a male. In addition, the former wife also had a girlfriend. The husband's motion for relief was denied by the trial court, which stated that the husband had failed to allege the existence of any significant change in the former wife's financial circumstances that would warrant any relief.

On appeal, the husband argued that the support provision should be set aside because at the time of the dissolution it was not contemplated that the former wife would undergo a sex change. The husband contended that the support provision, especially the part concerning the former wife's cohabitation with an unrelated male, was effectively rendered meaningless by the former wife's change of gender. The husband also raised the exceptionally novel argument that the former wife had a reduced need for support "considering the disparity in earning power between the sexes," apparently arguing that males by definition require less support.

The Ohio Court of Appeals affirmed the trial court's denial of the husband's motion for relief, finding that the former wife's sex change did not amount to sufficient changed circumstances to warrant modification of the husband's support obligation. "Judith's alleged sex-change, without more, provides no basis for the court to revisit the spousal-support provisions of the parties' decree." The court also noted that the fact that the former wife had a girlfriend did not provide any ground for altering the support award. The court did, however, note that, if the girlfriend began cohabiting with the former wife and contributing to her financially, this occurrence may constitute a sufficient change in financial circumstances to allow the court to revisit the support award.

The court in Moore clearly held that the only basis to modify a support award is a significant change in the financial circumstances of the parties and that the former wife's sex change, while admittedly significant, did not necessarily affect her financially. By so holding, the court in Moore placed a higher premium on the financial situation of the supported spouse than on her current gender status.

David Cotter is a Senior Attorney of the National Legal Research Group, the nation's oldest and largest research firm for attorneys.