Fetish Friday: Polyamory and the Law Part 1 – Legal Issues of Tricycles

It’s Fetish Friday here on Lawyers & Liquor, the time of the month where we pop ball gags in the willing mouths of the audience and start lecturing them about legal issues related to kinks, fetishes, and, in general, things that have a sexual or romantic flair to them. Why? Because that’s my thing, man! I am a “pedantic legalist kinkster” and I really get my rocks off reciting statutory provisions to a guy in a gimp suit. Don’t you judge me.

Before we lube up enough that every surface becomes a slip and slide, though, I want to be really clear about something with this month’s discussion: Some of the stuff I talk about here isn’t a kink or a fetish. It’s a lifestyle or a form of romantic partnership. The reason this stuff pops up in the “Fetish Friday” section is simply because I love alliteration, and in case you haven’t noticed the names of the other Friday posts aren’t always on point. So before you people lose your shit all over me, I want you to grasp the fact that I’m not calling polyamory or non-monogamy a de facto kink. Today I’m just talking about what happens when a person loves a person…and another person…and another person…all at the same time and they’ve decided to live together as a family unit.

So, you know, put away the bats and shit, unless that’s your thing. I’m not here to pick a fight with polyamorists. Even if I was, you guys have me outnumbered by at least 3-to-1, so I’d be pretty goddamned screwed, wouldn’t I?

But First, A Disclaimer

Look, the law is a really fucking complex thing, and it gets even more complex when you talk about an area of law that’s related to the governing and legal status of relationships. Why? Well, because that shit is governed on a state-by-state basis for the most part, and therefore I can’t tell you exactly what the law says in your state. Plus, I don’t give legal advice on this site, I give general educational and entertainment value information to people about legal concepts. Nothing here is legal advice, you get that from an attorney you’ve personally met with in your jurisdiction and specifically retained for representation, and that definitely isn’t me. So, you know, I ain’t your goddamn lawyer.

Besides, do you really want the guy who wrote a piece about bondage and the law involved in your family law matters? Didn’t think so.

That said, let’s get these balls a-swinging, okay?

Non-Monogamy, Polygamy, and Polyamory: No, They Aren’t the Same Thing.

Alright, so we need to set some ground rules for today.

First, there’s a difference between polyamory and polygamy. “Polygamy” is a marital structure where a person is legally married to more than one other person at the same time. Polygamy is, in all 50 states and all U.S. Territories, illegal. In pretty much all of them, intentionally engaging in polygamy is a criminal offense.

“Polyamory” is the act of being in a romantic (though not necessarily sexual) relationship with more than one person at the same time, with the consent of the others, and normally living together in some sort of a familial unit. This is not the same thing as non-monogamy, which is multiple relationships, romantic or sexual (but generally sexual from what I’ve seen) with others. Polyamory will normally treat all the people as being engaged in one relationship together, where are non-monogamy sort of treats them as separate relationships.

So there. Polygamy is illegal, Polyamory is not because it does not confer a legal status. But, with the questionable exception of Utah, there’s nothing saying you can’t live with more than one person in a family unit, all of you swapping spit and anniversaries with each other, and be happy and healthy. In essence, the law may regulate who you can legally marry, and how many you can legally marry at once, but it’s moved on for the most part from the days of criminalizing your ability to sustain loving relationships in a group of people.

Though, frankly, I don’t know how you assholes do it. I have a hard enough time remembering one anniversary and birthday, I couldn’t imagine having to remember more than that.

Oh, one more note for today:

I’m going to differentiate between a “legal spouse,” that is one who’s married legally in the relationship, and the “spiritual spouse,” being the spouse who’s in the relationship and a spouse in all ways but legally. Don’t read too much into the word usage. I’m literally pulling those terms from academic discussions on the subject and am using them here for ease of reference alone.

So…If Living Together Is Okay, Why Is This A Big Deal?

It’s a big fucking deal because marriage, legal marriage that is recognized at law, grants special protections to the people in the marriage.

Marriage is a legal status that is recognized only between two people, and it grants special rights to those people. Among these rights are consideration as the immediate next of kin for your spouse, preferential tax treatment and bankruptcy protection, property rights that are exclusively available to married couples, and inheritance rights that generally cannot be waived. It’s a pretty big deal, legally, for people to be married and not just “cohabitating.”

If you think it’s not, go ask a gay couple that’s been together since prior to Obergefell and the legalization of gay marriage in any state how fucking difficult it was to protect the status of their relationship against the fucking law.

Because, guys, the law isn’t about polyamory. The law is about non-monogamy, in that it completely wants to barge into your relationship and, in some ways, fuck you hard and fast while your spouses watch.

“Give Us An Example!” Says The Strawman.

You ever heard of “Tenants by the Entireties?”

Awesome, so that’s a term in property law that says when married people take ownership of a piece of property together, while married, it is assumed to automatically be their property with the right of survivorship attached. That means that whoever croaks first, the spouse automatically gets the whole piece of property without the need for a will or a new deed or any of that shit. While the formation requirements of a tenancy by the entireties differ from state to state, the general rule is the same: when married people buy shit, it’s assumed to belong to both of them and the right for it to pass on to their spouse on death is fucking absolute and automatic.

In essence, if a married couple owns everything by a tenancy by the entireties (bank accounts, land, cars, etc.), then there’s absolutely no need  for a will to transfer the property on death. Additionally, there are restrictions on what one spouse can do with tenancy by the entireties property. For example, generally one spouse can’t transfer the property without the consent of the other spouse, a huge difference from “joint ownership with the right of survivorship,” where one party can transfer their interest and terminate the joint tenancy.

A key factor, though, is that tenancy by the entireties is only available to married people. In fact, if a married couple gets divorced, they revert to a lesser form of joint ownerships (depending on the state this is either that “joint tenancy with right of survivorship” or the raggedy-ass bitch of property co-ownership, the tenancy in common).

Likewise, there’s this shit out there for estate law called the “spousal share,” which is where even if you write your spouse out of the will they have an absolute right to demand the court disregard the will and grant them a portion of your estate. This is there in all fifty states, the whole “you have to leave your spouse something” thing, and can be protective such as when a person has an old will from before they got married, or their newer will was invalid and the court is probating an old will. That shit can be the difference between your spouse being destitute and actually having some shit.

That’s not even digging into inheritance laws for intestate estates, where a person dies without a will. In those situations, there’s a law out there which provides this whole order of who gets your shit, and while it includes a spouse it certainly doesn’t include your “spiritual spouses.” So a lack of a legal marriage can leave you out in the cold.

How Does That Shit Apply To Polyamory?

Well, remember when I said the law only recognizes one marriage at a time as being valid?

Yeah.

That means if you have, say, one legal spouse and one “spiritual” spouse that you both consider a husband/wife to you, only the legal spouse gets to inherit shit. The third-wheel spouse (That’s it, I’m calling non-legal spouses in polyamorous family units “tricycles” from now on) gets supremely left in the cold here. In essence, if you don’t plan correctly the non-legal spouse in a polyamorous relationship can be left counting on the goodwill of the legal spouse.

And…look, you all love each other, but if there’s one thing I’ve learned it’s that people get a little fucking emotional and worked up when death and money become an issue. You guys can’t just count on everything continuing to be cool and alright after one of you are gone. The death of one of you would destroy some part of the family unit.

Oh, and we’re not just talking about death here. We’re talking about divorce, too.

But We Love Each Other, Boozy! We’re a Happy Tricycle!

Yeah, you are now.

Everyone is now.

But as the divorce cases that keep calling my office prove to me, shit happens.

Where you have people you have emotions, and emotions aren’t the best for thinking through. Guys, when relationships go bad they have a propensity to go really fucking bad. This is the unwinding of a life, and for a group of people, the issue could be that one person wants to leave the relationship while the rest remain in it, and then what are we looking at? If they aren’t the legal spouse then there’s no set of divorce law or any approximation of it that lets them leave automatically with a fair share of what they put into the relationship. Maybe they’ve been making mortgage payments on a house that’s only in the name of the legal spouses, and now they’re going out into the cold on their own.

Or make it a little more realistic. Say the legal spouses both work and make good money, so the “spiritual spouse” stays at home to take care of the house because, hey, they don’t really need the money! But then the spiritual spouse decides to get out of the relationship…they have no resources and no job, and soon no place to live…and legally? They have no automatic right to a share of the marital estate they helped to build over time because the law doesn’t recognize their status.

Pretty fucking dire, huh?

…Is There More?

Sure.

Technically the “spiritual spouse” would be just a good friend to the legally married people in the relationship, and if they’re all non-legally married, then they’re all just really good friends who do shit like straighten ties and cuddle together for movie nights and shit.

That means no hospital visitation rights, no default next-of-kin status for anyone in the relationship, no protection from collections and judgment activities (which legal spouses have) for jointly held assets, and a whole fucking host of problems.

I mean, the takeaway here is folks in polyamorous relationships that aren’t legally married to anyone else in the relationship can get boned by their spouses, and not in the deep, loving, romantic way they want to be. The law will not light fucking candles and draw you a nice bath. The law is a rough and ready leather daddy ready to fuck your shit up and spit on you before leaving you there.

But, there are ways to lessen the impact.

How?

Well…that’s really a discussion for next month, isn’t it?

So I’ll see you next time for “Fetish Friday: Polyamory and the Law Part 2 – Solutions For The Triumvirate.”

-BB