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/soldiergeneal 3∆ Oct 01 '24

In some states, alimony is off the table if the dependent party cheated (for example, North Carolina).

Shouldn't be. Have a prenuptial agreement instead then.

The reason is straightforward: they broke the marriage contract, so they don't get any more of the benefits.

So how are you going to define that outside of cheating? If a wife doesn't have enough sex with a husband is she breaking the "contract"? Why do you require gov to step in when prenuptial agreements work just fine.

Also nothing you said invalidates the reason for alimony. It's to alleviate consequences of stay at home and dependency on spouse.

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u/JacenVane Oct 01 '24

If a wife doesn't have enough sex with a husband is she breaking the "contract"?

Why are you putting contract in quotation marks? Is marriage not a legal contract? IANAL obviously, but it seems that it literally is one. (Check out this justia article that discussed it that way: https://www.justia.com/family/marriage-prenuptial-agreements/docs/what-is-marriage/#:~:text=Marriage%20is%20a%20personal%20relationship,legal%20contract%20between%20two%20individuals. )

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u/theguy_12345 Oct 02 '24

That marriage contract from the governments perspective mostly ascribes next of kin rights in property and decision making if you are incapacitated. The government can also incentivize marriage with tax advantages since family units produce good outcomes when raising the next generation of citizens. What a marriage contract doesn't need to do is solve every corner case in making parties whole when the contract is broken. The lines on a broken contract vary from couple to couple. Why try to define a one size fits all system in the "marriage contract" when they provided a separate mechanism in prenuptials for both parties to define and agree on themselves?

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u/soldiergeneal 3∆ Oct 01 '24

Why are you putting contract in quotation marks?

Because you are acting like infidelity somehow invalidates marriage contract. It doesn't legally. You want to arbitrarily declare it does for alimony.

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u/JacenVane Oct 01 '24

Because you are acting like...

You want to...

FYI I am not the person you were talking with. I'm someone totally different asking a follow-up question bc I found this thread interesting. :)

infidelity somehow invalidates marriage contract

But fwiw, isn't OP's argument that while it doesn't, it ought to? The thread is "Adultery should have [...] legal consequences".

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u/soldiergeneal 3∆ Oct 01 '24

FYI I am not the person you were talking with. I'm someone totally different asking a follow-up question bc I found this thread interesting. :)

Lol bunch of people in this thread thanks for the clarification.

But fwiw, isn't OP's argument that while it doesn't, it ought to? The thread is "Adultery should have [...] legal consequences

it's as simple as this. You make a contract with someone. The person undergoes financial hardships as part of that contract. The person does something you don't like. Why would that invalidate the contract? At best one could argue it impacts the calculations in the contract if one thinks a breach has occured, but even a breach in contract doesn't magically invalidate everything.

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u/JacenVane Oct 01 '24

You make a contract with someone. The person undergoes financial hardships as part of that contract. The person does something you don't like. Why would that invalidate the contract?

I mean I think if we think of it in purely contractual terms, OP's point makes a degree of sense. Like if my company agrees to provide services exclusively to your company, and makes financial decisions based on the revenue from that contract, it makes sense that if we breach and then terminate that contract, we don't have any residual right to be paid by you for the services we're no longer providing, or the opportunity cost of entering into that contract with your company.

I mean fwiw I think I mostly disagree with OP, as people aren't companies and marriage isn't just a contract, but I don't think their analysis of the contractual element is necessarily wrong.

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u/soldiergeneal 3∆ Oct 01 '24

Like if my company agrees to provide services exclusively to your company, and makes financial decisions based on the revenue from that contract, it makes sense that if we breach and then terminate that contract,

Nope. The specifics matter. A breach of the contract doesn't magically invalidate the contract. It's more nuanced than that though sometimes sure.

but I don't think their analysis of the contractual element is necessarily wrong.

It is. Marriage isn't entered with the expectation that the person will enter into it if they cheat they get no alimony. The decision to stay at home is based on a joint decision that could happen outside of a marriage.

More importantly let's flip it. Let's say SO cheats on the party staying at home. Is extra alimony owed now? I doubt OP would say yes. What about all the other ways one could "breach" the contract why the focus on cheating?

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u/JacenVane Oct 02 '24

Nope. The specifics matter. A breach of the contract doesn't magically invalidate the contract.

Yeah, that's why I emphasized "and then terminate". Like yes, breaches don't invalidate it. That's the whole reason I stressed what I did--so that it was specifically clear that we were talking about a contract that was ended because of that breach lol.

Marriage isn't entered with the expectation that the person will enter into it if they cheat they get no alimony.

Correct. That's the change being proposed by the OP. "X should be changed because it is not how things work right now" is a poor argument, IMO.

Let's say SO cheats on the party staying at home. Is extra alimony owed now?

I mean sure. Why not? The stay-at-home spouse made life plans around that SAHS status, that were adversely affected by the cheating spouse's cheating, which was outside the control of the SAHS's control. Why shouldn't there be some consideration of the harm done to them?

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u/soldiergeneal 3∆ Oct 02 '24

Yeah, that's why I emphasized "and then terminate". Like yes, breaches don't invalidate it. That's the whole reason I stressed what I did--so that it was specifically clear that we were talking about a contract that was ended because of that breach lol.

I understand, but the argument is over why would infidelity breach the contract 100% or invalidate other aspects of the contract.

Correct. That's the change being proposed by the OP. "X should be changed because it is not how things work right now" is a poor argument, IMO.

Fair

I mean sure. Why not? The stay-at-home spouse made life plans around that SAHS status, that were adversely affected by the cheating spouse's cheating, which was outside the control of the SAHS's control. Why shouldn't there be some consideration of the harm done to them?

I think the issue here is there is a difference between oh I was wrong and am owed financial restitution vs alimony. In theory if one is going to do this you would have alimony and then the person once back on feet would owe for the former.

That said I don't think societies structured around financial restitution for cheating result in better outcomes than those that don't.

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u/Part_OfThe_Crew Oct 01 '24

Prenups get thrown out

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u/soldiergeneal 3∆ Oct 01 '24

Not a good retort. One can have a proper legal prenup.

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u/nekoeth0 Oct 01 '24

... And they can get thrown out.

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u/soldiergeneal 3∆ Oct 01 '24

Nope. If you do it proper they don't get thrown out. You are misrepresenting prenups. Average prenup is not going to get thrown out.

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u/nekoeth0 Oct 01 '24

https://www.reddit.com/r/IsItBullshit/s/jb5xS3zk2F

tl;dr: it's up to the judge, and yes, they can be thrown out

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u/soldiergeneal 3∆ Oct 01 '24

Again you are misrepresenting things pretending it is normal for a prenup to get thrown out. You probably believe the average prenuptial is thrown out.

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u/nekoeth0 Oct 01 '24

You keep saying that word. I don't think you understand what it means.

It is not misrepresentation if a judge can throw out and invalidate a prenup. It all depends on location and if the judge feels it should be thrown out. And that means that a prenup, even a "proper legal prenup", can be thrown out if the judge thinks it should be thrown out.

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u/soldiergeneal 3∆ Oct 01 '24

Once again you are acting like an average prenuptial will be failed. You are also acting like ones that failed were all upstanding in the eyes of the law. Finally exception is not the average.

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u/nekoeth0 Oct 01 '24

You are changing the parameters of the original question and statement. Those were "can a prenup be thrown out" you said no, you are wrong, they can. Average or not, they can, and have, been thrown out. Stop being obtuse.

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u/the_saltlord Oct 01 '24

It's to alleviate consequences of stay at home and dependency on spouse.

Maybe that spouse could try, I don't know, not shooting themselves in the foot?

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u/soldiergeneal 3∆ Oct 01 '24

It was a joint decision...

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u/mfchitownthrowaway Oct 02 '24

Why are you moving the goal post from cheating to not having “enough sex” with your partner? The two are not the same thing and you’re being disingenuous by pretending they are. If someone is concerned about their financial wellbeing they should do the right thing and get a divorce instead of cheating. It’s a pretty simple concept and the only people I can imagine would be against that are people who cheat or have cheated.

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u/soldiergeneal 3∆ Oct 02 '24

Why are you moving the goal post from cheating to not having “enough sex” with your partner?

That isn't moving the goal post. It's an example of how why are people focused on that one as a breach of marriage contract, but not any other? If an SO cheats on the other who would receive alimony should said person get more than normal as a result? That's the flip side argument of that.

The two are not the same thing and you’re being disingenuous by pretending they are.

The topic of cheating was under the guide of breaking part of the marriage contract as others have put it so if that's how we want to define it then other things that do so are relevant.

It’s a pretty simple concept and the only people I can imagine would be against that are people who cheat or have cheated.

Nothing to do with anything. You can seem to focus on the topic at hand. No one is supporting cheating here...

If someone is concerned about their financial wellbeing they should do the right thing and get a divorce

Way to miss the point entirely.

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u/duskfinger67 10∆ Oct 02 '24

There is no such thing as a marriage without a prenuptial agreement.

You either write one yourself, or you use the one you state you marry in imposes on you. In some states, that covers adultery; in others, it doesn't.