You and your partner may have decided to try non-monogamy in the near future or you have already made the leap. If you are married, there are practical and legal issues you should think about when you leave the traditional world of monogamous partnership for the unexplored territory of polyamory, swinging or “open marriage.” As a Texas attorney with an alternative lifestyle, I would like to share my experience and offer some ways to avoid the biggest legal problems facing married couples transitioning from a traditional marriage to non-monogamy.
The first question many people have is, “How can we do this in a way that protects ourselves and our marriage?” Let’s break this answer down into a couple of parts.
Part 1: Avoiding the Ugly Breakup
You have probably heard that communication is the key to successful relationships, that goes double (and triple, and quadruple) for non-monogamy. Communication with your spouse, communication with prospective and current partners, and communication with metamours (your partner’s other partners) can definitely smooth the emotional path as you begin to practice non-monogamy. Going hand-in-hand with communication is education – after all, if you’re not educated on a topic how can you communicate about it properly? Educating yourself on Consensual Non-Monogamy (CNM) through books, podcasts, conferences, online groups or in-person meetups can help you understand the different kinds of non-monogamy and common problem areas that couples face when they transition from monogamy to something else.
Good communication and education are a critical first step towards avoiding serious problems down the road, legal or otherwise. Anger or hurt feelings from misunderstandings, unpleasant surprises, and misalignment of unspoken expectations can spark conflicts that turn into expensive legal battles: divorce, custody, evictions, lawsuits, and sometimes even criminal complaints. You may not be able to plan for and discuss every possibility and you may not be able to resolve every disagreement, but having a practice of open and honest communication can go a long way in keeping you and ones you love from winding up in a contested court case.
With good communication and education, you’re giving your new relationship the opportunity to succeed. But you should notice that I said that we are trying to avoid an ugly breakup, or “contested” divorce.
It may seem counterintuitive, but one of the best ways to protect your marriage now is to realize that your marriage will end someday, whether in death or divorce. This doesn’t mean that someone has to have done something wrong, we’re all humans who change over years and decades, and you either grow together or grow apart. You should plan for the best- and worst-case scenarios while you are in a loving relationship, where both of you want what is best for each other.
Keep in mind that the statistics on marriages lasting “till death do us part” are not great, whether you practice non-monogamy or not. A high percentage of folks who are married now will end their marriage in some kind of legal dissolution. Preparing for that possibility with a lawyer or other professional can be wise for both spouses when making a big relationship change.
And engaging in non-monogamy will change your marriage. You and your spouse are taking a look at a promise that was probably in your wedding vows – sexual fidelity – and are deciding that this is not something that is essential to your relationship. Throughout this process, you may wind up re-evaluating other promises and unspoken assumptions and realize they don’t work for you anymore.
Sometimes after the re-evaluation of marriage, spouses come to hold different (and incompatible) beliefs about what this relationship means to them. Sometimes one or both spouses decide to transition away from being legally married. This transition may be painful, but it can be done with kindness and respect for all parties that minimizes disputes; this kind of “amicable” divorce will not only minimize legal expenses, but it can allow you to preserve a friendly relationship with a former spouse, as well.
You can help ensure an amicable today and tomorrow by having a poly-friendly lawyer help you create a post-nuptial agreement (an agreement like a pre-nup, but after you’re already married) that sets out some ground rules: you could agree to mediate conflicts instead of fighting in court, you could document the fact that you are engaged in CNM and agree not to use that against each other in the event of divorce, you could agree to use your community property in a way that is fair and equitable, both during the marriage and in the event of divorce, and you can be creative about how you want to design your relationship moving forward. It is a good idea to plan on revisiting any agreement like this to make sure it is still working for everyone as your relationship evolves.
Part 2: Money Mistakes and Community property
One of the biggest (and scariest) topics to communicate about is Money.
Every marriage partnership handles their money differently; there’s no one-size-fits-all approach to money management. But a universal truth of the modern world is that dating can get expensive. What do you do when you open up your marriage and one partner wants to take their dates to the movies and nice dinners, while the other partner prefers picnics and nature walks? What if one person prefers dating a lot of people and the other partner has fewer?
Suddenly there’s a massive gap in spending, or at least a tension – especially if one partner is spendy while the other has a tight budget, and the money comes out of the same pot. It can be especially problematic if one person is not only feeling a little jealous or resentful because they don’t have as many dates as their spouse, but they also aren’t getting the enjoyable experiences or things that they could buy with the money their spouse is spending. If you can communicate about reasonable budgets for each partner and perhaps allot each person an amount of money that is “theirs” to spend as they wish on other partners or themselves, that can go a long way to reducing the kind of resentment that can damage a marriage relationship.
Again, there’s no one-size-fits-all approach to money, but by even talking about it you’ve already begun to set yourself up for success. A poly-friendly lawyer, a financial advisor, or a therapist may be able to help guide you and your spouse through these negotiations.
If a serious relationship develops between a spouse and one of their partners, they may want to help that partner out financially. Maybe they want to invest in a business together, or co-sign for a loan with that other partner. The other spouse may not want to be financially intertwined with their spouse’s partner. But the default legal position is that the married couple can be treated as a single financial entity. Texas is a community property state – resources earned or acquired during the marriage are typically presumed to belong equally to both partners and either partner can spend the community funds. Likewise, a loan that one spouse agrees to may wind up committing the other spouse to share liability for the debt.
To divide the finances fairly and allow each spouse to use their share of the community property in a way that doesn’t entangle the other spouse with a partner, a married couple can enter into a post-nuptial agreement. This is a legally binding contract that can turn some or all of the community property into assets that each spouse can control separately and can separate the couple for the purposes of liabilities on debts.
Here, I’ve offered some general information to consider and some broad guidelines for protecting your marriage in legal and practical ways. To find out what works best for you, your spouse, and your polycule, you will need to talk to a legal professional in your state who can help you understand your options.
If you are in Texas and have questions about legal issues that are specific to your situation, contact me at www.chosenfamilylawtx.com for a short free consult or a longer “legal coaching” session.
 I am an attorney licensed only in Texas.