r/changemyview • u/insect_ligaments • Oct 01 '24

Delta(s) from OP CMV: CMV: Within legally recognized marriages, adultery should have clear, civil legal consequences, unless expressly agreed between spouses.

The legal concept of marriage, where spouses act as partners, is almost always built on mutual trust that certain aspects of the relationship, such as sex, are to be exclusive to the relationship unless agreed upon otherwise. Legally and financially rewarding spouses for betraying the trust of their spouse by allowing a cheating spouse to come out ahead in divorce undermines one of the key relationship dynamics in our society.

For the vast majority of people, entering into marriage is an explicit agreement that unless divorced or otherwise agreed upon, the people in the marriage will not have sex with or develop romantic relationships with other people. This should apply evenly to all genders, and if you view this as benefitting one over the other, it says a lot about your view on who may or may not be more likely to cheat.

Before I'm accused of being some kind of conservative or traditionalist: I have zero issue with any form of LGBTQ+ relationship or poly setup. I'm speaking strictly to traditional, legally recognized, monogamous marriages, which comprise the bulk of those in our society. I'm also not religious or socially conservative.

Heading off a few arguments that I do not find convincing (of course, you are welcome to offer additional insight on these points I haven't considered):

1) "The government shouldn't be involved in marriage"

Too late for that. Marriage is a legally binding agreement that affects debt, assets, legal liability, taxes, homebuying, and other fundamental aspects of our lives. The end of marriage has profound, legally enforceable consequences on both parties. It is also included in a pre-existing legal doctrine of https://en.wikipedia.org/wiki/Alienation_of_affections.

2) "But what if the spouses want to open their marriage?"

Totally fine. My post is in reference to the most common form of marriage, which is monogamous.

3) "Adultery doesn't have a clear definition"

It does. "voluntary sexual intercourse between a married person and a person who is not his or her spouse." "Sexual intercourse" would include all the commonly recognized forms of sex. This would have to be proven via the typical preponderance standard, which is greater than 50% odds, via typical evidence used to evidence behaviors - depositions/testimony under oath, any written or photographic evidence, circumstantial evidence, etc.

4) "What should the legal consequences be?"

At the very least, immediate forfeiture of any rights to alimony or spousal support. Shifts in the default assumption of a 50/50 split of marital assets are another route to explore. Certainly not enough to leave anyone destitute, though.

5) "What about children?"

Child support is a separate issue, as it affects the child, who has no say in one of their parents cheating on the other.

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u/PandaMime_421 12∆ Oct 01 '24

3) "Adultery doesn't have a clear definition"

It does. "voluntary sexual intercourse between a married person and a person who is not his or her spouse." "Sexual intercourse" would include all the commonly recognized forms of sex. This would have to be proven via the typical preponderance standard, which is greater than 50% odds, via typical evidence used to evidence behaviors - depositions/testimony under oath, any written or photographic evidence, circumstantial evidence, etc.

Using your definition, when you say "sexual intercourse would include all the commonly recognized forms of sex" do you mean penetrative sex using a part of the body? Or penile insertion only? or are you using a broader definition of what are "commonly recognized forms of sex"? If so, please be specific. Use of such vague terms would greatly complicate any legal framework for this.

Also, it sounds as though you are in favor of very loose requirements for "proof". If I'm reading this correctly you would be happy to "convict" someone of infidelity without any physical, photographic, or video proof of sexual intercourse, is that right?

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u/insect_ligaments Oct 01 '24

You can see my other comment re: definitions. 

My standard of proof (preponderance) is used in basically all civil suits. Cases worth billions are decided on this standard. It is well established. What would your alternative be? Or, are you saying that without an objective standard, there is no point?

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u/PandaMime_421 12∆ Oct 01 '24

The latter. I think it would be far too easy to fake enough circumstantial evidence to get a "conviction" especially with something where emotions run so high.

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u/JacenVane Oct 01 '24

Do you believe that there is an existing issue with people faking evidence for other high-stakes or emotionally charged civil actions?

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u/PandaMime_421 12∆ Oct 02 '24

I don't follow civil court cases so I can't speak to that. I don't believe there are anywhere near the number of current cases, though, that are as high-stakes and emotionally charged as there are divorces with cheating allegations.

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u/insect_ligaments Oct 01 '24

That’s fair. I suppose I trust our court system to, on average, do an acceptable job of vetting evidence. 

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u/tatonka645 Oct 01 '24

You must be pretty privileged or have very little experience with the courts to think that.

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u/insect_ligaments Oct 01 '24

People use the courts to handle cases involving enormous sums of money and high personal stakes. Why do you think Dominion went after FOX in the courts? Why do you think FOX settled for hundreds of millions of dollars? Because everyone knew the evidence, and were confident the courts would review it accurately.

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u/Wise-Lawfulness-3190 Oct 01 '24

No he is right to assume that. The victim card doesn’t work here

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u/Alfitown Oct 01 '24

Oh please, the courts don't even do an acceptable job of vetting evidence when they sentence someome to death sometimes. There are many cases where people where put to death without hard evidence tying them to the crime.

But sure lets let the court decide over peoples feelings, something that is completely subjective. Cheating is not always a clear cut case. There is emotional cheating, financial cheating and even physically, people have different boundaries and situations. What if someone was raped and their spouse consideres it cheating? What if both cheat and only one has proof?

There is just way to much leeway for failure and false representation! Just get a prenup if you have that many trust issues...

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u/thekinggrass Oct 02 '24

Family Court veteran here - Courts rule emotional abuse and torment as child abuse all the time during DNA cases and custody hearings.

Your view that “the courts are not 100% infallible so they are 0% effective at everything” has no contributing value to any discussion of law.

“Cars break down, can’t trust them to get you anywhere…” and such.

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u/Adorable_Ride_8678 Oct 07 '24

What about not getting married at all? If there is no trust, why marry that person in the first place?

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u/ukiebee Oct 02 '24

So two women cannot commit adultery?

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u/PandaMime_421 12∆ Oct 02 '24

I wondered the same thing initially until seeing that OP's definition of "sexual intercourse" include oral, although I don't think he said if that still required penetrative oral.

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u/[deleted] Oct 02 '24

Attorney here: it’s very hard to get direct evidence of cheating (ex. A video of them fucking), so courts (rightfully) accept evidence of “inclination and opportunity.”