On April 16, 2013, the Michigan Court of Appeals affirmed in a published opinion a trial court’s grant of a judgment of divorce, despite the fact that the plaintiff-wife in the divorce was mentally incompetent and the defendant-husband in the divorce was no longer male. In Estate of Devon Burnett, Docket 309640. The plaintiff incompetent spouse was 79 years old and suffering from dementia. The defendant spouse was a post-operative transgender male to female. This case brings to light two very interesting and important public policy considerations, which the Court of Appeals declined to address. First, should guardians of an incompetent spouse be able to sue for divorce on behalf of the incompetent spouse? Second, should the courts define a man and a woman by their biological sex? In dicta, the Court acknowledged that defendant’s argument that as a matter of policy, allowing guardians to file for divorce on behalf of an incompetent spouse who never filed for divorce while competent could lead to divorces brought by family members merely for financial gain, was an interesting one, but noted that such a policy consideration was better left to the legislature of the Michigan Supreme Court. In this particular case, the evidence clearly established that the parties were no longer holding themselves out as married. They were living in separate states, and there was no indication that the defendant spouse provided any support to the plaintiff incompetent spouse after 2005. If the plaintiff wife had been competent, certainly no judge would question her decision to file for divorce. However, the issue does remain–what purpose does divorce serve other than a financial advantage to the guardians and beneficiaries of the incompetent spouse’s will? On the one hand, if divorce is necessary to address the possibility of an abandoned spouse leeching off of an incompetent spouse’s means for support, then certainly, divorce actions initiated by guardians of an incompetent spouse seems necessary. On the other hand, is it equitable to allow guardians to initiate divorce actions solely for the purpose of financial gain once the incompetent spouse has passed away? Also in dicta, the Court of Appeals noted that it was declining to adopt a definition of “man” and “woman” as defined by biological characteristics. Since the Michigan Constitution and Michigan law expressly forbid same sex marriage, this decision from the Court of Appeals was surprising. On the one hand, adopting the view that ones status as male or female is determined by ones chromosomal pattern could allow for couples in a transgender relationship to legally marry, despite the fact that outwardly, the marriage may appear to be one between the “same sex.” On the other hand, the decision not to define a “man” and a “woman” at law may avoid confusion with other areas of the law where biological sex may be relevant. It seems that the Court of Appeals was fearful of the policy implications of such a decision, and so, instead of answering the question–to be or not to be–it simply declined to respond. Such an action from the Michigan Court of Appeals is not surprising. Just a few months ago, it acted similarly in its published decision regarding custody of a child between two same sex parents that were legally married in another state, as described in this blog for Usitalo v Landon.