how do you get around charges of adultery if married and poly?

jackrabbit

New member
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.
 
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.
 
Also, I found the following in wikipedia:

http://en.wikipedia.org/wiki/Divorce_(United_States)

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

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

Just a couple comments here


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).

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
 
Hey Cat :) (hope you don't mind the nick)
nope, don't mind at all! :)

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.



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.

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?
 
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.
 
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.

Yep - you got it Ygirl. Nor even claim the children ! Even though we lived full time together - same legal address etc.
I don't believe that's changed yet either but can't be certain. We chose to cave and get married - although that wasn't the ONLY reason. At that time, and in that place (conservative area) we felt it unfair to risk exposing the kids when they started school to the "bastard" label.
But to us - it was never anything more than a legal contract for mutual benefit. We don't even have the marriage certificate, don't remember the date (or celebrate it). We celebrate the day we started living together. And in our case, we have a verbal agreement that were we ever to go separate ways we would be as fair as humanly possible about the whole deal. But if we knew then what we know now, we probably would have drawn up some prenup and felt that much better about the whole thing. Because you never know what can happen once emotions become involved - or money. As down to earth people as we are - people are people.
 
Yep, that's basically the impetus for the thread. No matter what you think and feel now, or how strongly you think and feel it, it may not be what you think and feel in the future. So everyone should at least accept the possibility.
 
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Yep - you got it Ygirl. Nor even claim the children ! Even though we lived full time together - same legal address etc.

This I do not understand. Did you not have yourself put on their birth certificate as their father? Then I can see why... But if you did declare paternity on the birth certificates AND no one else was claiming them as dependents, then I would have to say that you got some erroneous advice from somewhere - either a lawyer, or the tax-preparer, or from some cubicle-clerk at the IRS.
 
Weighing in

It seems to me like the most reasonable defense against an adultery charge for a couple entering a legal marriage in the US is to have a prenup that clearly delimits how to parsel joint resources back out in the event of a divorce. IMO, marrying couples of any lovestyle with any real funds to speak of need to get a prenup, just so that both sides have to have a conversation about how they both feel about the money they have, and to keep their expectations together.

None of that protects children in a divorce where poly is involved in the US (and I suspect in many other places). According to the Wiki prenup page:
Prenuptial agreements in all U.S. states are not allowed to regulate issues relating to the children of the marriage, in particular, custody and access issues.[citation needed] The reason behind this is that matters involving children must be decided in the children's best interests.

Of course, nothing but a good lawyer and a sensible judge seems to protect poly parents when their fitness to parent becomes a legal question.

At the end of the day, I have to agree with SchrodingersCat:
Don't marry the sort of person who's likely to stab you in the back if things don't work out.
Go in with your eyes open, and make all the necessary arrangements (including your wills), and then surround yourself with people who will respect the agreements you've made, legal or no.

@jackrabbit, I'm getting the sense you're curious about this topic academically... Am I off the mark? (Sorry for prying, but it's hard to give advice at a theoretical level sometimes.)
 
Sure, it's just academic. I personally have no interest in getting married to anyone at all. Been there, done that, have the t-shirt.
 
GS: Under those tax restrictions, I can definitely see why the "legal contract" form of marriage would make a lot of sense. And what I like about how you've presented it is that it's exactly that. As opposed to a lot of couples who get married for financial reasons, and then proceed as though the marriage itself has given them some kind of skills or status that will somehow protect them, so they don't have to work on their relationship continually... then they're astonished when the love disappears and they want a divorce.

IMO, marrying couples of any lovestyle with any real funds to speak of need to get a prenup, just so that both sides have to have a conversation about how they both feel about the money they have, and to keep their expectations together.

I can see this point as a "legislative" argument to force couples to have prenups... I've read that money is the #1 thing couples argue about.

In that sense, I'm somewhat a fan of some of the churches which make their members take marriage courses before allowing them to wed. I'm not normally a fan of churches, but that's one thing that makes some sense.

So ironically, my stance is that "I don't want a prenup for my relationship, but I believe it would be good to legislatively require them." Because if it was required, then I wouldn't feel like doing such a thing meant I didn't believe in my relationship (which is how I feel). We had those talks [about finances and kids and future career plans etc] of our own volition. People definitely should be having those important conversations before making such a commitment, and if it takes a law to make them do it, then so be it.
 
In that sense, I'm somewhat a fan of some of the churches which make their members take marriage courses before allowing them to wed. I'm not normally a fan of churches, but that's one thing that makes some sense.

I don't know if Minnesota is the only state that does this, but we get a huge discount on our marriage license if we do take some kind of marriage course. This can be through a church or through a trained professional. Our officiant is a good friend of ours and although a church person herself, she knew and understands that Cajun and I are not so she tailored not only the "classes" but also her part of the ceremony to fit with our beliefs. So these marriage classes don't have to be religious and filled with doctrine, and I agree, they should be required for practical reasons (also parenting classes).
 
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