Ask Leslie: Navigating the divorce proceedings of an open marriage


How does the law navigate the divorce proceeding of an open marriage?

– Ms. Open Minded

Dear Ms. Open Minded…,

When a couple decides to get married, they are making a legal commitment in the eyes of the law that is considered monogamous, unless you live in a state that permits polygamy. The marriage commitment is both emotional and financial. When a couple decides to divorce, it is the division of the couple’s finances that often controls the proceedings and how amicable the divorce will be.  

An open marriage is a conscious decision made by a legally committed couple to invite outsiders into their relationship wherein each partner is permitted to “date” someone other than their spouse. The law does not comment on a legal position of open marriages; however, in certain states, some laws prohibit adultery that is often not enforced. Such laws could be used by a scorned spouse, unhappy with the open marriage arrangement, to seek out and collect additional money in a divorce settlement.

When a couple is in a marriage that is not “open,” and one spouse enters a relationship outside of the marital union, the issue becomes how much money did that spouse spend on the extra-marital relationship? In other words, money that would have otherwise belonged to the legally committed spouse commonly referred to as the dissipation of marital assets. In some cases, the amount of money is quite extensive and can’t be overlooked by either the divorcing spouses or the courts.  

THOUGHTS… if you are still interested in dating others while professing your undying love to someone else, then perhaps you should not get married as it will most likely only complicate your life. An open relationship takes two very mature adults with the same mindset to be successful. Should one partner suddenly “change their mind,” which often happens as we are only human, this could lead to a complete relationship breakdown

Finally, if a legally married couple wishes to enter an open marriage relationship, perhaps a contract between the spouses should be considered wherein the terms of the marital and open relationships are defined, including the use of joint finances. This is not to say that the courts would enforce such a contract if the couple ultimately divorce. However, it may go a long way to protecting the integrity of the marital assets and the division of them in being able to show the intent of the married couple to engage in a non-traditional marital relationship.

ASK LESLIE SAYS…. When entering any relationship, especially a marriage, the lifestyle pattern that you establish concerning finances, childcare, household, gifting, travel, “dating,” etc.… can be used to show the intentions of the couple should a divorce become a reality. Those established patterns can be used to aid in the division of the couple’s assets. Caveat: State laws vary on how marital property is divided, so you will want to consider that when creating a life plan with your partner.


Scroll Up