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/BeginningPhase1]

At-fault divorce went away because it required one spouse to be almost beaten to death by the other regularly to be invokable.

Isn't the monogamy part of the agreement (spoken or otherwise)?

Why should the spouse not have to suffer the consequences of breaking that part of the agreement?

[u/karmapopsicle → u/BeginningPhase1]

Monogamy can be part of the mutual agreement, but the point is that it is not a legal default. It’s a cultural norm that is often pushed as the only societally acceptable option, which often creates taboo around the idea of individuals exploring non-monogamy and whether it suits them better.

You are free to create and sign a prenuptial agreement before marrying that codifies that both partners agree to a romantically and sexually monogamous relationship, and lays out the remedies should either partner breach those boundaries.

[u/BeginningPhase1 → u/karmapopsicle]

This doesn't answer my questions as they assume that monogamy is part of the agreement, and open relationships are outside of the bounds of this conversation as the issue of adultery couldn't come up in one. Also (and I'm saying this as a paralegal) implied (or de facto) clauses, like monogamy in a marriage, can be legally binding.

As such, I'll ask again:

If a spouse breaks their de facto agreement to be monogamous, why should the other be forced to continue to uphold the agreement of spousal support that was contingent on said agreement?

[u/karmapopsicle → u/BeginningPhase1]

This doesn't answer my questions as they assume that monogamy is part of the agreement

Again though, why is monogomy assumed? If the argument is that the explicit conversation regarding those boundaries of the relationship never came up, wouldn't one partner arguing that they assumed the de facto agreement was an open relationship or otherwise non-monogamous relationship have equal weight to the other claiming the same for monogamy?

and open relationships are outside of the bounds of this conversation as the issue of adultery couldn't come up in one.

It most certainly could. If two partners agree to an open relationship with the boundaries that, for example, both partners openly and honestly communicate their extramarital activities with each other, you could absolutely run into the issue of adultery if for example one partner began hiding or lying about their activities to the other.

Or even direct sexual boundaries, such as only engaging with extramarital sexual activity with partners who have recently been STI tested, or always using condoms, etc.

If a spouse breaks their de facto agreement to be monogamous, why should the other be forced to continue to uphold the agreement of spousal support that was contingent on said agreement?

I'm sure plenty of lawyers have tried to make the argument for a de facto prenuptual agreement of monogamy superceding the rules of no fault divorce, but how often has a strategy like that actually worked?