Polyamory.com Forum

Polyamory.com Forum (http://www.polyamory.com/forum/index.php)
-   General Poly Discussions (http://www.polyamory.com/forum/forumdisplay.php?f=2)
-   -   how do you get around charges of adultery if married and poly? (http://www.polyamory.com/forum/showthread.php?t=2332)

jackrabbit 03-17-2010 03:23 AM

how do you get around charges of adultery if married and poly?
 
If you are in a traditional marriage and also have relationships on the side, including sex, I assume that legally this would be adultery.

Now obviously it is not a moral issue if the partner approves. And adultery itself is not illegal, so no crime is being committed.

However...if the marriage ever falls apart and there is an unfriendly divorce, the commission of adultery by one partner only could affect the divorce settlement.

What are the legal ramifications here? What do those of you who have regular marriage combined with poly do about this?

Would a signed and notarized document giving permission for extra-marital sex be worth anything in court? (Of course, it would have to be recorded in some way or stored somewhere that the spouse could not destroy it.)

I assume that if both of the partners are involved in extra-marital relationships, this becomes a non-issue, since both are committing adultery and neither would gain an advantage in court.

I did a search for "polyamory legal issues" but all of the stuff I found was for setting up equivalents to marriage, not working within one.

redsirenn 03-17-2010 04:09 AM

Most states only do "no fault divorce" meaning there does not need to be a cause for divorce, and settlements are strictly economic.

In other words - none of this matters.

jackrabbit 03-17-2010 04:37 AM

Okay.

What about the other states?

jackrabbit 03-17-2010 04:57 AM

Also, I found the following in wikipedia:

http://en.wikipedia.org/wiki/Divorce...ited_States%29

Quote:

In some jurisdictions divorce does not require a party to claim fault of their partner that leads to the breakdown of marriage. But even in jurisdictions which have adopted the "no fault" principle in divorce proceedings, a court may still take into account the behaviour of the parties when dividing property, debts, evaluating custody, and support.
In addition to the highlighted part, note that "does not require a party to claim fault" is not the same as "a party is not allowed to claim fault". It appears to me that a party can claim fault if he/she wants to. Remember that we are talking about a possible divorce battle, not a friendly divorce. In a friendly divorce, none of this should be an issue.

on the other hand:

http://en.wikipedia.org/wiki/Condonation

Quote:

Condonance may be made when an accuser has previously forgiven or condoned (in some way or at some level supported) the act about which they are complaining. In some legal jurisdictions, and for certain behaviors, it may prevent the accuser from prevailing.

For example, if a creditor states that they forgive a certain debt, they might be blocked (or estopped) from attempting to collect that debt later. They would not be blocked from collecting any other debts, however. Condonation may also be a defense in cases of dismissal from employment for cause where the employer by word or conduct forgives or impliedly forgives behavior which would otherwise justify dismissal without notice.
However, this is listed under defenses for fault divorce and may not apply to settlements for no-fault divorce.

So I dunno. Seems to me there might still be danger.

SchrodingersCat 03-17-2010 05:23 AM

While it's legally irrelevant as a cause for divorce, adultery is definitely a factor in divorce settlements and custody cases. My guess is that any document to the contrary would be ignored by most middle-aged conservative judges, which makes up most of the justice system. At the end of the day, having the best lawyer matters a lot more than any actual facts anyway. People who have flat-out cheated have walked away with half of their spouse's net worth just by having a better lawyer.

I don't know whether a document would have any weight in court. For one thing, you can't sign contracts that violate legislation, and I'm not sure what the exact legislation is on adultery. I would imagine that such a thing would have to be signed prior to saying your vows to have any real weight.

I've never remotely understood people who get married with an "in case of divorce" plan... what the hell are you getting married for if you think you MIGHT EVER get divorced?? If you're going into it with that attitude, you're setting yourself up for failure because if you're already reneging on your commitment when the going is good and you're all lovey-dovey, where are you going to be when life throws you its curveballs? Religious convictions aside, our society full endorses common-law partnerships with, in most jurisdictions, the same rights and responsibilities as marriages. In Canada, if you live with someone that has a kid and you do one single "parent-like act" (make them dinner one day, take them to the doctor, anything that a parent would do) then instead of waiting a year, you become common-law the moment you move in together (at least as far as Revenue Canada is concerned, i.e. our IRS).

My solution to this conundrum was simple: Don't marry the sort of person who's likely to stab you in the back if things don't work out.

I think this is a lot more of an issue for the people who get married before realizing they're poly, and then the spouse "goes along" with it but is never really emotionally on-board. I could definitely see that coming up in a court battle and being a big issue.

jackrabbit 03-17-2010 05:33 AM

Quote:

Originally Posted by SchrodingersCat (Post 24295)
I've never remotely understood people who get married with an "in case of divorce" plan... what the hell are you getting married for if you think you MIGHT EVER get divorced??

It's just being a realist. Divorce courts are full of people who never, ever thought that they would wind up in divorce court. Really, wouldn't that be the majority of the cases?

jackrabbit 03-17-2010 01:39 PM

Also, the signed document was just one of the options. Not having an extra-marital relationship unless the partner also has one would be a lot safer in court, even with a middle-aged conservative judge. He would probably dump his puritan condemnation on both parties, so neither would have an advantage in the settlement because of adultery.

GroundedSpirit 03-17-2010 03:24 PM

Hey Cat :) (hope you don't mind the nick)

Just a couple comments here


Quote:

Originally Posted by SchrodingersCat (Post 24295)

I've never remotely understood people who get married with an "in case of divorce" plan... what the hell are you getting married for if you think you MIGHT EVER get divorced?? If you're going into it with that attitude, you're setting yourself up for failure because if you're already reneging on your commitment when the going is good and you're all lovey-dovey, where are you going to be when life throws you its curveballs?

I notice you are from Canada (profile?) so in many ways you are more fortunate. In the States things can be pretty weird and sometimes nasty. Especially when dealing with anything involving govt, court systems etc.
I'm very much an advocate of REQUIRING prenup agreements ! Doing otherwise is to unwisely ignore a number of aspects of being human and how that plays out in a societal framework. Fact is - things change. People change. The world changes. Some of those changes have the potential to impact relationships- i.e. marriages.
Many people in the states get married partially for the financial and security benefits such a legal arrangement confers. In reality it's often as much of a legal contract as it is any emotional bond. Things like health insurance, tax ramifications etc have a major impact on people and decisions are made accordingly. Especially when children are or may be involved.
So it is a legit reason to marry for many in absence of what we've often discussed about more enlightened options (and people).

Quote:

Originally Posted by SchrodingersCat (Post 24295)
Religious convictions aside, our society full endorses common-law partnerships with, in most jurisdictions, the same rights and responsibilities as marriages. In Canada, if you live with someone that has a kid and you do one single "parent-like act" (make them dinner one day, take them to the doctor, anything that a parent would do) then instead of waiting a year, you become common-law the moment you move in together (at least as far as Revenue Canada is concerned, i.e. our IRS).

Again, just a reminder here to be careful of making blanket statements in a forum with worldwide visibility. Especially in regards to legalities. There's far too much variation from state/state - province/province, federal etc to say much except "research YOUR state/province - contact a lawyer when in ANY doubt !"
I can for example state that in the past (can't say whether it's changed but don't believe so) the U.S. Federal govt absolutely does NOT recognize common law status - especially for tax purposes. I learned this lesson the hard way (several hundred dollars worth of hard way) after living together (unmarried) for 3 years and having 2 children. Not "married" - tough shit - pay up ! Don't care if you are living together and are are sole source of support !
This being on the federal level - and even that varies state/state.

So we have to be careful when talking about such things. As much as many of us can all see a simpler, better way to handle the whole mess, the conservative, religious leaning masses still have the control strings.
Only choice is to outsmart them (usually not that difficult) :)

GS

SchrodingersCat 03-18-2010 12:10 AM

Quote:

Originally Posted by GroundedSpirit (Post 24311)
Hey Cat :) (hope you don't mind the nick)

nope, don't mind at all! :)

Quote:

Many people in the states get married partially for the financial and security benefits such a legal arrangement confers. In reality it's often as much of a legal contract as it is any emotional bond. Things like health insurance, tax ramifications etc have a major impact on people and decisions are made accordingly. Especially when children are or may be involved.
So it is a legit reason to marry for many in absence of what we've often discussed about more enlightened options (and people).
You make a good point.

I guess I understand the "purpose" of legal-arrangement-loveless-marriages. I just would never be caught dead being in one!! I've got a very idealistic view of marriage and of "valid" reasons to get married. In short, if you need logical reasons to get married, then you probably shouldn't! :P Too many people get married for the "wrong reasons." Mind you, that's easy to say in a country with Universal Health Care!! I can't even begin to imagine the burdon it places on a family to worry about something as inevitable as getting sick and needing a doctor, how that can bankrupt you.. it's a horrible thing! You should all move to Canada!!! :P

So in that context, then I totally get the prenup thing.

And of course you're right that no one expects to one day be in divorce court when they get married (except those green-card arrangements, for which a prenup goes without saying.) But in my not-so-humble opinion, anyone who enters a marriage with a contingency plan for divorce is already prepared to bail. The universe gives you exactly what you ask for, whether you're clear about what you ask for or not, and whether or not you intend to ask for that... And if you get married with a plan for divorce, then you're asking the universe for your marriage to fail.

People do change, absolutely. But it's easy to identify the people who tend to change for the better (i.e. "grow") from those who change for the worse. At least, it's not hard for me ;) If I don't see a person taking active steps to improve themselves and their life, I don't get involved with that person. I guess I'm kind of a snob that way :P

I guess I'm getting off-topic here... my whole point is that I would only marry someone whom I saw to be on a lifelong path of growth. People's emotions can definitely change, but not who they are deep down as a person. So if you marry the right kind of person, then even if you grow apart as individuals, it should be reasonable to end things amicably.



Quote:

Again, just a reminder here to be careful of making blanket statements in a forum with worldwide visibility. Especially in regards to legalities. There's far too much variation from state/state - province/province, federal etc to say much except "research YOUR state/province - contact a lawyer when in ANY doubt !"
Very good point.

Quote:

I can for example state that in the past (can't say whether it's changed but don't believe so) the U.S. Federal govt absolutely does NOT recognize common law status - especially for tax purposes. I learned this lesson the hard way (several hundred dollars worth of hard way) after living together (unmarried) for 3 years and having 2 children. Not "married" - tough shit - pay up ! Don't care if you are living together and are are sole source of support !
Sorry for being nosy, but I'm confused... you had to pay up? For what?

NeonKaos 03-18-2010 12:13 AM

Quote:

Originally Posted by SchrodingersCat (Post 24339)

Sorry for being nosy, but I'm confused... you had to pay up? For what?

It sounds like he was supporting his kids and their mother but could neither file jointly as a (common-law) married couple nor claim his partner as a tax deduction.

Correct me if I'm wrong about that, GS.


All times are GMT. The time now is 12:21 PM.