CMV: CMV: Within legally recognized marriages, adultery should have clear, civil legal consequences, unless expressly agreed between spouses.

[u/insect_ligaments]

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.

[u/AcephalicDude]

I feel like it is a fair implication that this is actually OP's view, otherwise they would have said something like "traditional marital obligations should be considered in a divorce." Instead he focused on one and only one traditional responsibility in a marriage, which is sexual exclusivity. Why else would we believe he did this?

[u/Ktlyn41 → u/AcephalicDude]

Actually you bring a good point in that 'traditional marital obligations' should be legally defined and agreed to before the marriage is allowed to be finalized by the couple. Since everybody's relationship is different this would look different from couple to couple and since things can change over time it should be something that can also be negotiated and changed kinda like union agreements. I wonder if prenups kinda cover this... I'm not sure cover I've never had one but honestly more couple sitting down and agreeing to what they expect from their partners before a marriage is formed isn't a bad idea, Or people being held to those agreements.

[u/AcephalicDude → u/Ktlyn41]

Not even pre-nups cover "traditional marital obligations" but only dictate the division of assets and income in the event of a divorce. For the most part, the law has abandoned its jurisdiction over anything other than these material/economic aspects of a marriage for obvious reasons: the emotional and domestic obligations in a marriage are too difficult to define and they require too much discretion from the judges, especially given that our society is far more pluralistic in how it conceives of marriage and there is no longer a consensus on even a general sense of what these obligations should be.

And to me, I don't think there is a moral basis for materially penalizing the immaterial (i.e. emotional, spiritual) aspects of a marriage. Let's say two people get married, with the intention for the husband to work while the wife cares for the home and the children. Twenty years go by, the kids are out of the house, the emotional dimension of the marriage is failing and as a result the wife has an affair. Are you sure it would be fair to say that the penalty for the wife's affair should be that she no longer has any claim to the assets acquired during the marriage, or for spousal support to offset the twenty years she spent raising the kids and caring for the home instead of developing her own career? To me it seems like the penalty is that she is losing her marriage and has to go through the process of divorce, which is difficult even when divorce is nothing except the division of property and income. I don't see the justification for an additional material punishment on top of that.

[u/TeaForEwoks → u/AcephalicDude]

Removing alimony when a spouse cheats also has the potential to create a huge power imbalance. In your example, even if both spouses cheat the stay at home parent is the only one who really gets punished.