Saturday, February 16, 2013

The Legal Nitty Gritty of Polygamy

Note: This entry is a couple of years old, and I am bumping it up because it is still relevant. I consider polygamy to be a marital form of polyamory. It can be applied to relationships involving one man and two or more women, one woman and two or more men, three or more women, three or more men, or multiple men and multiple women. The law should allow for any of these, and allow the marriage to be constructed as dyadic networks or all-with-all, depending on what the spouses want. This is all possible and any paperwork issues should not be allowed as an excuse to continue to deny this freedom to marry.

A very helpful person commenting on a previous entry provided and essay on two different possible models for legalizing polygamous or polyamorous marriages. I have previously expressed support for what the essay calls an “all-with-all” model, in which everyone in the marriage is legally considered a spouse of anyone else in the marriage. As such, if two married people wanted to add a third person, it would legally re-form the marriage instead of adding a second marriage to one of the current spouses. Practically, while a Muslim man who practices polygyny would consider up to four women his wives, those wives may or may not (more likely, wouldn’t) consider any of the other wives their spouse. While the man would have four spouses, each of his spouses would only have one; him. Legally, however, “all-with-all” would consider them all spouses of each other.

The essay below favors another model, a “dyadic network” model, in which our hypothetical polygynous man may see two of his multiple wives also marry each other, and later divorce each other while both staying married to him. This does have a certain appeal, because if all three spouses are able to consent to go from a “triangle” to a “V” socially and financially in a peaceful, then isn’t that a good thing that should be supported legally?

My concern, though, is this. Existing marriage laws, at least in the US, create what amounts to a corporation with the two spouses having an equal financial share unless otherwise specified. The default is that should one of the spouses die, the other spouse retains the corporation’s assets. This would have to be changed under the “dyadic network” model, otherwise we’d have what amounts to multiple corporations with equal claims to the very same assets. To use a business model, if a corporation owns a plot of land, how can one of the shareholders create another corporation that has then has ownership of the same plot of land at the same time? The original partner shareholder is not likely to be happy with that. With the “all-with-all” model, shareholders are added to the existing corporation. Given our current laws and legal system, I would think the “all-with-all” model would be easier to legalize.

I am not a lawyer. If a court or legislative body was considering increasing the freedom to marry by adopting the “dyadic network” model, I would support that. My chief concern with this blog is full marriage equality, which includes, among other things, the freedom to polygamous marriage. That may involve a man and multiple women (polygyny), a woman and multiple men (polyandry), or the grouping of multiple men and women. Consent of all involved is essential. This consent not only includes the freedom to marry, but the freedom to divorce.

Under the “all-with-all” model, if one or more spouses wants to bring an additional person into the marriage and one or more of the other current participants is resistant, the person(s) seeking to change the marriage can either 1) give up on the idea, 2) convince those resistant so that they will sign the paperwork, or 3) accept that to add the new person(s), someone else is going to leave. The resistant can either decide to leave or decide that the change will be worth it to stay in the marriage that includes the current spouse(s). The paperwork burden is on those who want to bring in new spouses.

If one or more spouses want to leave, the remaining spouses can decide to stay together in the instantly re-formed marriage, or not, but they can’t stop anyone from leaving.

Under the “dyadic network” model, if one or more spouses want to bring an additional person into the marriage and one or more of the other current participants are resistant, the paperwork burden is on those who want to leave. They must take action, while in the “all-with-all” model, all the resistant have to do is say “no” when someone else wants to add someone else, and it will be up to the person seeking change to either drop the proposed change or leave the existing marriage to create a new one.

The essay describing the dyadic network model is below. More information can be found here.

Proposed models of polyamorous marriage include an all-with-all approach to marriage (whereby three or more persons are all joined together at the same time within a single marriage) and dyadic networks (whereby existing laws against bigamy are revised such that people are perfectly free to be concurrently married to multiple other persons, provided that each such new marriage is preceded by a legal notification regarding the pending new marriage to all those to whom one is already married; failure to provide that legal notification would then constitute the updated crime of bigamy).

Anthropologists consider humans to be a pair-bonding species.

This does not make it necessary for our marriage laws to be based on pair-bonding. What (some, majority, “all?”) anthropologists believe need not translate into law. Social dynamics don’t necessarily need to be the basis of the law. Marriage laws are mostly about property, taxes, and other financial considerations, next-of-kin rights, and recognition. This is something to keep in mind as we look at the rest of the essay.

The “all-with-all” approach attempts to replace human pair-bonding with triad-bonding, quad-bonding, etc. Dyadic network theory says that human pair-bonding is our fundamental method of relating, and that polyamorous relationships arise from overlapping pair-bonds.

Dyadic networks would result in what might be thought of as a "molecular" family structure - one which might be best represented by the molecular diagrams commonly used in chemistry. In this way, marriage would remain a dyadic relationship (i.e., a relationship between two persons), thus minimizing any changes to the existing system of legal marriage, but the introduction of concurrency would provide access to legal marriage for polyamorous families.

Dyadic networks can correctly represent any situation associated with the "all-with-all" paradigm, as well as many situations that the "all-with-all" paradigm cannot deal with. A "complete" dyadic network would take the form of a complete graph, in which every person is (pairwise) married to every other person, thus correctly representing any situation associated with the "all-with-all" paradigm. A dyadic network may also represent situations in which some persons are (pairwise) married to some members of the dyadic network but not to all of them ("V" and "N" geometries, for example) — these are situations that the "all-with-all" marriage paradigm is unable to accurately represent.

Under the current restrictive “monogamy only” laws, two people can be considered married under the law even if they haven’t done anything with each other in years except share an address. They could be having sex with others and carrying on almost entirely separate lives. In that sense, the situation is not “accurately represented” by the law. There is no reason that legal recognition of polyamory (or the polygamous freedom to marry) would have to correspond to the social dynamics of the relationship. In other words, not all of the spouses need to actually be lovers with each of the other spouses.

The "all-with-all" marriage paradigm assumes that everyone is equally involved with everyone else in the group — one global marriage agreement has to fit every participant at the same time. But dyadic network marriages separately define the terms of each specific 2-person relationship, and these dyadic marriages do not typically happen at the same time (A marries B, B marries C ("V" structure), C marries D ("N" structure), etc. — thus, the shape of the dyadic network dynamically changes over time). Participants in a dyadic network need not even be aware of the specific terms of marriage agreements existing elsewhere within the same dyadic network.

Someone with the ability to refuse consent should be aware. That means either the registering government or the other spouse(s). Why? Let’s say person A marries person B with the agreement that B will be the income earner while person A will maintain the home. The agreement is that should they divorce, person A is entitled to 50% of the material acquisitions ("community property") during the marriage. Now, let’s say B subsequently marries C, with the same agreement between B and C. If either connection ends in divorce, the agreements will be discovered to be in conflict. That is why all spouses should have to consent and be aware and file a valid marital agreement (such as with an “all-with-all”). For example, A, B, and C would all have to agree that that anyone leaving would be entitled to 33% of the community property, or if they all agree that B should get 40% and A would get 30% and C would get the remaining 30%, then that is fine if they’ve all agreed to that. A and C wouldn’t have to be having sex with each other or even share meals for them to be part of the same marriage.

Under the "all-with-all" marriage paradigm, when irreconcilable differences arise there can be no alternative to a complete separation — one person cannot divorce another without ending the entire marriage agreement for everyone involved.

It would mean that those who want to remain married would instantly have a re-formed marriage. Instead of three people, it would be two people, with the person who left taking whatever their marital agreement provided or what the default divorce laws provide. It would be up to the person who has irreconcilable differences with one or more of the other spouses to decide if those differences matter enough to either want to leave the marriage alone, or convince the spouse or spouses with whom he or she would still like to be with to “leave” with him or her.

But dyadic networks can function in much the same way as watertight compartmentalization functions in naval vessels, i.e., to limit and contain damage. An intense disagreement between two persons takes place within the context of their marriage, and need not greatly involve (or threaten) the relationships between other participants. Within a well-connected dyadic network, a divorce between two persons need not result in a complete separation of the network — for example, a dyadic network with triangle geometry would simply turn into a dyadic network with "V" geometry.

An "all-with-all" marriage can only exist or cease to exist. In contrast, the shape of a dyadic network can dynamically change over time. Divorces subtract connections, and marriages add connections. The dyadic network itself either changes shape, separates into two dyadic networks, or merges into another dyadic network, depending on the precise nature of the newly added or subtracted connection.

The maximum size of an "all-with-all" marriage is limited by the fact that every participant must be aware of the existence of every other participant (otherwise the global marriage contract would be invalid, because it could not satisfy the legal condition known as a "meeting of the minds"). But since a dyadic network relies only upon every participant's local knowledge of his or her own direct partners, its size is theoretically unlimited. The dyadic network paradigm is so powerful that it is theoretically capable of managing a situation in which every adult on earth is legally joined together in a single enormous dyadic network. Thus, with the dyadic network model, the idea of "many loves" is directly translated into a practical reality, and the "infinity" symbol (representing love without limits) is directly matched by a marriage model capable of handling an infinitely large number of participants.

The Dyadic Networks model of polyamorous marriage raises important questions related to marital commitment. With a single dyad, the situation is simple; each spouse commits to support and protect the other, and the logic of conventional monogamous marriage applies. However, when multiple dyads intersect in a dyadic network, how exactly does the commitment process work?

To understand this, let us consider the parent-child relationship. In the parent-child situation, the support commitment exists only in one direction - from parent to child. When there is a single parent, the child has a single source of commitment, and all protection must come from that source. However, when there are two parents, they are jointly responsible for meeting the child's needs. The precise arrangement is worked out somehow, and provided that the child's needs are being met the law has no need to intervene. If the child's needs are not being met, then debt collection methods such as garnishing wages, seizing assets, etc. can and do occur in order to ensure that child support takes place. These actions are typically proportional to income and/or wealth, so the wealthier parent will pay more. Where a parent has commitments to multiple children, the parent must faithfully carry out his or her responsibilities to each and every child. Although it may sometimes seem that the needs of children are unlimited, this is not actually the case, and once a child's needs are satisfied (a certain amount of food, shelter, medical care, etc.), all parents of that child may regard their commitments as being satisfied with respect to each need for which adequate provision has been made, regardless of which parent(s) actually did the work of satisfying that need.

Turning now to commitment in the dyadic network model, this can be understood as a bidirectional version of the parent-child model. Each dyad represents a commitment of each spouse to the other. Thus, in a V configuration, the two partners at the ends of the V each rely upon commitments from the single partner at the center of the V (the "pivot") - each of them has one spouse. The "pivot" partner can rely upon two commitments, one from each of the two partners at the two ends of the V - the pivot partner has two spouses. If the pivot partner is incapacitated, he or she is in a position comparable to that of a child with two parents - two people are committed to assist him or her and must do so up to the point at which the pivot partner's needs are satisfied. If one of the partners at the end of the V is incapacitated, he or she has only one spouse to rely upon - the pivot partner, who is fully responsible for meeting the incapacitated partner's needs up to the point at which that partner's needs are satisfied. If both partners at the end of the V are incapacitated, then the pivot partner is in a position comparable to that of a single parent with two sick children - he or she must meet the needs of both.

Again, this is why consent is required by all. If A and B are married, and B wants to marry C as well, A must consent. Maybe C is engaged in risky behaviors that make it more likely that C will become incapacitated, and A, who has been counting on full access to the financial and emotional resources of B, must now consider if this new risk is acceptable.

Let us now consider whether the commitment relationship is "transitive" - if A is committed to B, and B is committed to C, does this mean that A is committed to C? No, this is not the case. C can legally rely only upon the commitment of B and has no legal basis to expect or receive a commitment from A. Nor can A rely upon the commitment of C - that could happen only when and if A directly married (mutually committed to) C. However, suppose that C's needs are so large that B is thereby driven into bankruptcy and becomes destitute. Then B can rely upon A's commitment to provide B with a certain minimal level of support (food, shelter, medical care, etc.). Thus C's needs can have an effect on B that causes A to provide more support to B than would have been the case had C not needed to draw heavily upon B's commitment.

Hence, under the dyadic networks model, positive effects arise as a result of multiple commitments. When there is only a single dyad, there is a substantial risk that the size of the commitment will exceed the capacity of the committed. However, when each person is linked to multiple other partners in a dyadic network, this has the effect of bringing in additional capacity to meet any needs that may arise. Three or four spouses may be easily able to carry a commitment load that would have quickly driven a single spouse into bankruptcy.

The analogy to parent-child relationships carries over into other situations as well. Just as it would be improper to discriminate against a parent for having too many children (or too few children), so it would be improper to discriminate against a person for having too many or too few spouses. But with each additional child comes an additional commitment, and the same is true of an additional spouse. Adding another child to one's health insurance coverage will usually result in an increased monthly charge for the insurance, thus adding another spouse would probably have a comparable effect. But a child, or a spouse, only needs to be covered once, regardless of how many parents, or spouses, are available to provide that coverage. Also, a spouse may be economically self-supporting and thus able to pay for his or her own health insurance, so in this respect the total support cost for an additional spouse would then be zero.

Having drawn lessons from the parent-child relationship and applied them to dyadic networks, let us now draw a lesson from dyadic networks and apply it to the parent-child relationship. Just as there is no inherent reason why a person should not have more than one spouse, so there is no inherent reason why a child should not have more than two parents. When the law of marriage is updated to legally support dyadic networks, the existing adoption mechanism can be used as a means by which additional commitments to children can be created. For example, a single dyad may have already produced two children when each member of the dyad marries a third partner, thus creating a triangle. The newest member of this dyadic network can then execute two adoptions to become the third parent of each of the dyad's two children. Hence, in this situation, each of the three adults now has two spouses and two children. To the extent that any legal barriers might hinder the use of adoption in this manner, such legal barriers would also need to be direct targets of polyamory's legal activism (in addition, of course, to updating the law of marriage to support dyadic networks).

This N-parent situation has already been raised in the New York Times (When 3 Really Is A Crowd, July 16 2007, “On April 30, a state Superior Court panel ruled that a child can have three legal parents. […] Arthur S. Leonard, a professor at New York Law School, observed, 'I’m unaware of any other state appellate court that has found that a child has, simultaneously, three adults who are financially obligated to the child’s support and are also entitled to visitation.' […] As one advocate of polygamy argued in Newsweek, 'If Heather can have two mommies, she should also be able to have two mommies and a daddy.' If more children are granted three legal parents, what is our rationale for denying these families the rights and protections of marriage?” Our firm answer: there cannot be any legitimate rationale for the unconstitutional denial of this legal protection to polyamorous families.

The New York Times op-ed raises a question: “Conflicts will undoubtedly arise when three parents confront the sticky, conflict-ridden reality of child-raising, often leading to a nasty, three-way custody battle. Even if they part amicably, they may still want to live in three different homes. In that case, how many homes should children travel between to satisfy the parenting needs of many adults?” The legal answer has been provided by New York Law School Professor Arthur S. Leonard (Pennsylvania Court Finds Three Adults Can Have Parental Rights, May 01, 2007, “[...] the court gave Jennifer primary custody of the one nephew who was living with her, and partial custody (visitation rights) with the other three children; Jodilynn got primary custody of the three children and partial custody (visitation) with the one nephew, and Carl was awarded partial custody (visitation) of one weekend a month with his two children.” In the event of divorce, family law judges will calculate child support obligations and distribute visitation rights in accordance with the best interests of the child(ren).

Again, I would support the Dyadic Networks model as opposed to no gain in the freedom to marry, but I'm not yet convinced it is better than the all-with-all model. With either model, I would strongly recommend there be a written agreements over what would happen if any one of the participants decides to leave.
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  1. FME blog wrote: "Existing marriage laws, at least in the US, create what amounts to a corporation with the two spouses having an equal financial share unless otherwise specified. The default is that should one of the spouses die, the other spouse retains the corporation’s assets. This would have to be changed under the “dyadic network” model, otherwise we’d have what amounts to multiple corporations with equal claims to the very same assets. [...] Given our current laws and legal system, I would think the “all-with-all” model would be easier to legalize."

    That financial model is only used in nine (9) U.S. states (18%), which are collectively referred to as "community property" states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. In the 41 other states (82%), the "equitable distribution" model applies. Thus, "given our current laws and legal system" the dyadic networks model would in truth be far easier to legalize.

    The small group of states using the "community property" monogamy model does indeed present greater technical difficulty, but this increase in difficulty is trivial and quite easily managed. The implementation method for those states is that the dyadic networks model will coexist with the old "community property" monogamy model. New marriages will automatically default to the dyadic networks model, but if the couple prefers the "community property" model then they have the option of selecting that model instead. See, for example, Alaska - Alaska is an "equitable distribution" state, hence couples who marry in Alaska will marry under the "equitable distribution" model by default, but these couples can instead elect to marry under the "community property" monogamy model if they wish (they do this by executing either a community property agreement or a community property trust). Alaska thus constitutes an existence proof that both models can peacefully coexist within the same U.S. state's legal system.

  2. Thank you for this additional information. I will think more about this.

  3. Requiring consent is the wrong approach. If consent is withheld then divorce proceedings will quickly follow, which burdens everyone involved. And then the new marriage will proceed anyway. As a practical matter, there is no real ability to stop people from marrying if they want to do so. It is inappropriate to create a false sense of entitlement by creating the illusion that a right to consent exists.

    The goal of the law should be to minimize conflict. That means minimizing the likelihood that divorce will occur. The provision of legal notice successfully minimizes this possibility.

  4. The idea of forcing explicit contract negotiations on all marriages is preposterous. People who are about to marry are frequently hormone-intoxicated and in no mood to wait or negotiate. They want a simple process of "I do". Legal notice can be fully automated and requires no effort from either party. In addition, the most likely outcome is that both parties will receive messages of congratulations. That is the correct approach.

  5. The scenario in which 50% of B's "community property" goes to both A & C is absurd. As comment 1 points out, "community property" is an obsolescent paradigm associated with monogamous marriage in only nine of the fifty US states, and dyadic network marriages are properly based upon the paradigm used by 41 of the 50 states, "equitable distribution". But let's assume that pre-nuptial agreements are used in order to get to the same situation. B cannot contract away what B does not have. If 50% of B's income is already encumbered by the pre-nup with A, then B's income relative to the pre-nup with C is simply the 50% that is unencumbered by the pre-nup with A. Otherwise, B has falsely represented to C the extent of the assets promised to C and has therefore committed the tort of deceit, aka fraud.

    1. I don't think anyone is saying that B leaves the situation with nothing. B takes 33%, or whatever was agreed, and then A & C each get 50% OF WHATEVER IS LEFT OVER or whatever percentages to which they've mutually agreed.

    2. No, what you are referring to here is the hypothetical agreement that you argue is made necessary by your assertion that the A & B situation is in conflict with the B & C situation. What I am pointing out is that in reality, there is no conflict. The A & B situation was created first. As a result, B only has 50% unencumbered. B & C are therefore working only with the 50% that is unencumbered; otherwise B has committed fraud on C. The B & C situation encumbers 50% of what B is bringing in, or 25% of B's total income. Should B divorce both A and C, A gets 50% of B's total income, C gets 25%, and B gets 25%. There is no conflict. The rules clearly indicate the correct result.

      You argue that because there is this nonexistent "conflict", all the spouses have to explicitly consent. But the reasoning is false, and so the conclusion simply does not follow.

      Legal notification, not consent, is the correct approach.


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