Because I am a Texas attorney with an alternative lifestyle, people sometimes ask me if polyamory is illegal. If you are married and have a sexual partner outside the marriage, can you get arrested? What about if you are single but have a partner who is married and practicing consensual non-monogamy (CNM)? What happens if you refer to more than one person as your spouse? Folks who have seen the show “Sister Wives” (or the spinoff “Brother Husbands”) wonder how they can “get away with” polygamy out in the open.
First of all, let’s straighten out what it means when something is “against the law.”
Crimes are the biggest deal – these are things that you can be incarcerated for. There may be a penalty assessed instead of or in addition to a jail/ prison sentence or “injunctive relief” where the court tells someone they must do a particular thing – pay back money they stole, stay away from schools and playgrounds, etc. When there is a crime, the government (feds, state, county, city, etc.) is the prosecutor. Sometimes there is a definable victim like if someone is assaulted. Sometimes the victim isn’t a particular person, but the state is protecting the community, ie. tax fraud, crimes of morality.
Civil laws generally address issues between two or more people, businesses, or organizations. Civil law includes: marriage, divorce and family; lawsuits for injuries, making or breaking a contract, business formation and dissolution. Judges can divide up assets (businesses and family law dissolutions), assess liabilities (make a person or a business pay for damages they cause to someone else), and require injunctive relief (tell someone they must do a particular thing – sell an asset to divide among the owners, pay child support, follow a custody schedule).
Administrative law typically involves government regulations, from the local health department to state licensing agencies for doctors, plumbers, barbers, and electricians. If you get in trouble with government regulatory bodies, you could have to pay penalties or lose your professional license, but you don’t go to jail.
There are different rules and procedures for criminal, civil, and administrative courts – for example, to be convicted of a crime the prosecution must prove their case “beyond a reasonable doubt.” To prove fault in a civil case, one side typically needs to show the preponderance of the evidence is on their side (the scales weighing the evidence just need to be a teensy bit more in one person’s favor). Also, you can have a court-appointed attorney if you are accused of a crime and can’t afford a lawyer; this is not necessarily provided for non-criminal matters.
Laws and rules can be changed – by lobbying legislators and city councilmembers; attending decision making meetings at the state, federal, or local levels; or fighting a case in court until a court says the law has to change.
This is a super-simplified explanation of the different kinds of legal arenas. It isn’t meant to be a substitute for advice from an attorney about your specific facts – if you have questions about what you should do, seek the advice of a poly-friendly lawyer in your state who can give you the detailed explanations you need.
Now we can talk about the laws around adultery, bigamy, and polygamy and how they affect non-monogamous folks.
Is ‘adultery’ a crime? Can I get arrested for having other sexual or romantic partners if I am married!?
In Texas, there is no law in force that makes adultery a crime. From my research on this issue in the US,[1] I have found that even in the states which do have criminal provisions for adultery, these laws are rarely, if ever, enforced by the criminal justice system. If you or your spouse or one of your partners is in the military, you may have serious consequences (the UCMJ takes adultery allegations VERY seriously and is a law unto itself). But civilians in the United States probably don’t have to worry about winding up in jail for consensual non-monogamy.
However, keep in mind that this lack of enforcement is the current state of legal affairs as I write this post. Right now, many states and localities are targeting trans people and other LGBTQIA+ folks with new laws and heightened scrutiny designed to make their lives difficult or even eradicate them. In these areas, the self-appointed “morality police” may try to turn the negative force of state power against non-monogamous folks (especially since there are a higher percentage of LGBTQIA people who also practice non-monogamy). You should stay aware of the current political climate in your area and evaluate your safety accordingly.
Adultery and divorce
There could be BIG legal consequences for adultery in other contexts outside of the criminal justice system, though. ‘Adultery’ could be an issue during divorce that affects the division of property or custody. It counts as a ‘fault’ when determining the grounds for divorce in many jurisdictions, so one side can point to the other’s “cheating” and say this means that they deserve more of the couple’s community property. Judges may also consider parent’s “lifestyle choices” in determining custody (I will discuss kids and non-monogamy in more depth in a future column). Texas doesn’t really have an “alienation of affections” charge against the “paramour,” but if you are the person dating one or both of the married couple, you could get dragged in as a witness in their divorce.
You can mitigate the risk of your CNM being used against you in court by –
1. Making sure your spouse (or your partner’s spouse) is actually in agreement with non-monogamy
2. Keeping a written record of your agreement to practice non-monogamy.
Making sure your non-monogamy is truly consensual for both of you before engaging in polyamory or other CNM makes it less likely that your spouse will bring it up against you later. A written agreement between the two of you can be included in a formal post-nuptial agreement or in texts and emails and IMs between spouses, clearly agreeing that extramarital relations are allowed. There is no 100% guarantee that nothing will go wrong in court; there are times when extenuating circumstances (or conservative judges) defeat those documents. But it’s a generally good idea to get things in writing, if you can.
Bigamy and Polygamy
Living together with more than one person and just calling them “spouse,” “wife,” or “husband” isn’t really a crime. Even where there are laws against bigamy or polygamy, these are rarely prosecuted as crimes unless there is some other serious crime associated with the act, like tax fraud.
The folks on the Sister Wives show really put this to the test not too long ago.[2] Because of the history of Mormon polygyny and then the LDS church trying to formally distance themselves from that, Utah actually had some laws against not only bigamy and polygamy (purported legal marriage to more than one person), but also “unlawful cohabitation,” where no marriage ceremony existed. Kody Brown, the husband from the Sister Wives, was investigated for the crime of bigamy and unlawful cohabitation and the family sued to challenge the laws. A Utah court determined that the state could continue to bar people from getting legally married to more than one person, but ruled that the law barring people from living together as if they were married did not hold up to scrutiny. Ultimately Brown’s case was dismissed because the prosecutor’s office dropped the charges against him and showed they only prosecuted polygamy cases where alleged child bigamy, fraud, abuse or violence were present – not adults practicing consensual non-monogamy with no more than one legal spouse. This ruling from Utah doesn’t control how decisions are made in other jurisdictions, but it is a good example of how the laws against bigamy and polygamy are generally applied to CNM.[3]
As with adultery above, there may be other legal consequences even if you don’t have concerns about criminal prosecutions. Being non-monogamous is not a protected class for discrimination so a landlord might refuse to rent to your polycule or you could get fired from your job just for practicing polyamory. In these cases you might have little or no legal recourse. If your professional license has a morality clause, you could find your career in jeopardy if the licensing agency thinks CNM is conduct “unbecoming the profession.” And of course, the more marginalized groups you belong to, the more likely it is that you will be unfairly targeted in these ways.
If you have concerns, consider consulting with a poly-friendly attorney for ways you can protect your family.
Some good news
Organizations like the Organization for Polyamory and Ethical Non-monogamy (OPEN) https://www.open-love.org/ and the Polyamory Legal Advocacy Coalition (PLAC) https://polyamorylegal.org/ and the National Coalition for Sexual Freedom (NCSF) https://ncsfreedom.org/ are working for a greater acceptance of non-monogamy in society and advocating for legal protections for non-traditional families. Please consider donating time or money to these organizations, if you are able to. And if it safe for you to be open about your non-monogamy, consider participating in the Day of Visibility for Non-Monogamy on July 15, 2023 https://www.dayofvisibility.com/
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.
[1] I am an attorney licensed only in Texas.
[2] See https://en.wikipedia.org/wiki/Brown_v._Buhman
[3] Again, if you are in the military, you can have more serious potential consequences for non-monogamy, and you should consult an attorney knowledgeable in the UCMJ to determine your potential risks.
Recent Comments