Hacking Marriage

Polyamory, creative prenups, platonic co-parenting, open marriage, and the power of contracts

The United States government really wants you to get hitched. Married couples enjoy over 1,000 specific rights and responsibilities under the law, from tax credits to immigration to health insurance. Here's the problem: Over 50 percent of American adults are unmarried, yet many of those people are nonetheless part of families or relationships that could and should benefit tremendously from official status.

As same-sex marriages gradually win legal and social status, it's becoming harder to make the case that these other relationships shouldn't be similarly recognized. Luckily, thanks to the powerful tool of private contracts, families of all kinds can and do figure out ways to protect their love and family relationships with the people they choose.

Build Your Own Family

As a family law attorney and family mediator who primarily serves lesbian, gay, bisexual, transgender, and other clients with nontraditional families, I see people every day with the same questions: Can I get health insurance for my partner? Can he immigrate to live with me? Can we pay taxes together to get a benefit if he's my dependent? Can I visit him in the hospital? To their disappointment, my answer is often no.

A nontraditional family structure is one that falls outside of our traditional nuclear family model. Some of my clients are platonic co-parents. A gay man, for instance, might want to be a biological father but would rather not spend the $100,000 needed to become a parent by the complex legal and medical process of surrogacy. Instead, he chooses to raise a child with a single female friend, who would rather parent with a dear friend than rush to marry just so her child will have an involved father. I also serve polyamorous couples in consensually nonmonogamous relationships. Some clients are triads (or throuples)—three people in a primary relationship, who may or may not be monogamous with one another, and who have their own set of legal challenges.

While these family structures may seem far out, they are increasingly common and, especially in the case of polyamory, increasingly visible. Showtime's TV show Polyamory: Married & Dating and the upcoming documentary Monogamish (in which I appear) are just two examples of the uptick in media interest.

For the Children

The strongest resistance to the idea of legal recognition for nontraditional families often comes in the form of concern for children involved. Studies, such as the widely publicized 2011 report Why Marriage Matters from a team of conservative scholars chaired by W. Bradford Wilcox, are brought out to support the idea that monogamous, straight marriage is the best context for raising children.

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What the body of sociological work on this topic actually demonstrates is that stability of parenting figures is best for children; a revolving door of step-moms and step-dads is clearly sub-optimal. Andrew Cherlin, who wrote The Marriage Go-Round and co-authored a Brookings Institution report with Wilcox entitled The Marginalization of Marriage in America, cites the numerous studies demonstrating that unstable caregiver relationships are damaging to children. This need for stability is frequently cited by family courts in child custody determinations. The flawed leap in logic of many of these analyses is that they automatically equate parenting stability with traditional marriage. But as anyone who knows a couple who rushed into marriage for health insurance or immigration benefits can attest, traditional marriage isn't synonymous with stability.

Yet there's a straight line from this argument to myriad policies pushing people to get married. The federal government, for instance, has spent millions of welfare dollars pushing single mothers to marry. As described in a 2002 publication from the Alternatives to Marriage Project, Let Them Eat Wedding Rings, the federal government created the Healthy Marriage Initiative and the Responsible Fatherhood Program as five-year experiments as part of the Deficit Reduction Act of 2005. Grants totaling nearly $750 million were awarded to hundreds of programs under the umbrella of Temporary Assistance for Needy Families (TANF) in 2006 alone. Some of these funds went to billboards promoting marriage as an end to poverty, as if a wedding ring would magically lead to prosperity and stability. Couples at higher levels of socioeconomic prosperity often find themselves pushed to marry by many overlapping policies such as those allowing spousal inheritance without tax, employer subsidized health insurance for married partners, and streamlined policies that create greater ease for married couples in co-ownership of property and financial accounts.

In child custody determinations, the overarching standard is "the best interest of the child," a subjective decision based on the opinion of the one judge in the case, with all his or her own biases. When I represent a parent who is polyamorous or otherwise nontraditional, I can often predict the outcome of the case based on latitude and longitude as a proxy for the social values of an area. In New York City, I've won custody for a mom who was a polyamorous lesbian dominatrix, because the judge didn't think these aspects of her personal life implied that she lacked moral judgment or that they would impair her abilities as a mother. In more rural and conservative upstate New York, I had a Republican Christian police officer dad lose custody because he was living with a girlfriend before his divorce had been finalized. The judge found that behavior immoral to the point of questioning his ability to parent.

In this landscape, how do I provide stability for clients when the law doesn't recognize their family structure? How do I protect their rights and minimize the harm they suffer from the government bias against them?

In many cases, I help clients create family agreements by design, out of court, so they can use contract law to map their own path rather than picking a family structure from the government's menu. In effect, they can hack family policy and make it their own.

Connubial Contracts

Many of my clients want to commit to each other while maintaining nonmonogamy. Some call themselves polyamorous. Some prefer the word monogamish, or describe their relationship as an open marriage. Some still call themselves monogamous but claim the right to define what this means.

A first decision for a couple in a consensually nonmonogamous relationship may be to choose whether they wish to enter into legal marriage. Many couples who question monogamy also question the institution of marriage. I explain the many financial ramifications of entering into marriage, which, legally speaking, amounts to a private welfare state of two where all debt and profit is shared as marital property (unless these terms are tweaked by a prenup). For a specific couple, this may or may not be the best strategic choice for their interests.

For those clients who do marry, I help them devise creative prenuptial agreements. People think of prenups as a way to keep a gold-digging future spouse away from their money, but I try to reclaim the concept of prenuptial agreements for romance. The process can be an opportunity for an intimate discussion about a couple's practical and financial intentions for their marriage. Just as they have a right to make their own vows, I encourage them to make their intentions clear about whether and how they wish to share their money and property through their unknown possible future of children, prosperity, or loss.

As long as these prenups include the factors required by their state, such as full financial disclosure, adequate legal counsel, and recitations of any legal rights to be waived, these agreements are generally legally enforceable in any future divorce action. But the conversation is even more valuable protection than the contract, by helping prevent future misunderstandings and ensuring that the parties share their underlying assumptions.

If clients choose not to marry but still wish to outline their intentions about how they will share finances as a cohabiting couple, we may create a cohabitation agreement. If one will be a stay-at-home parent or other financial dependent, this agreement is the essential means to provide for ongoing support and division of assets if the couple separates. In effect, the couple can choose some of the financial protections of marriage and agree to them via contract.

An unmarried couple may also wish to protect their rights with wills, powers of attorney to make financial decisions for each other, health care proxies who can make decisions for their partner in the hospital, or a state or local domestic partnership registration, which may allow them to share health insurance benefits through an employer (although often at a higher rate than for married couples).

Some clients create what I call "emotional prenups," which are not legally enforceable. For clients who are nonmonogamous and wish to marry, for instance, I might help them write both a legally binding prenuptial agreement and a separate emotional prenup, more akin to a Jewish Ketubah or a statement of vows, that may address their intentions in relation to monogamy, parenting, division of household responsibilities, or a commitment to pursue couples therapy before splitting.

With these delicate discussions and negotiations, couples create powerful vows about issues that cause rifts in many marriages. Clearly written intentions on a signed piece of paper can have tremendous emotional weight, even if they involve agreements that it wouldn't necessarily make sense for a court to enforce—that a wife would go to couples counseling before divorcing her husband, say, or that a husband would agree to support his wife in her romantic relationships with women. Couples have told me that the process of reaching these pacts has saved their marriages or vastly improved them. Legal enforceability isn't the only measure of an important contract.

Triads and Quads

What if a polyamorous couple falls in love with a boyfriend and wants to welcome him into a three-way triad marriage? I support couples in just this situation, and it's a complicated adventure to try to provide them with the legal protections they seek.

Three-way marriage is not legal in the United States. To create parity between three partners, I've divorced happy couples so that their third partner wouldn't feel left out of the marriage, with the burden of fewer legal rights and protections. I've also helped triads decide whether any two of them should get married strategically to protect a partner's parenting rights, health insurance, or immigration status. This triad might go on to have a polyamorous commitment ceremony that is as elaborate, expensive, or deeply felt as any wedding but not legally binding.

If a triad wishes to share finances or buy a house, we can create a three-person cohabitation agreement. It would include all the factors that make a two-person cohabitation agreement valid and binding, with the intention to set them up for stability that would keep them out of court, but also to create a document that I hope would be enforced by a court to clarify that a three-person cohabitation agreement can be binding. My clients are advised that depending on their jurisdiction, the courts may refuse to enforce the contract.

Some polyamorous triads (or quads!) pursue the possibility of creating a limited liability corporation to share financial accounts. In practice, squeezing a family dynamic into the corporate structure of mission statements and bylaws often feels unwieldy. It has never been the most efficient structure to achieve a goal of shared home ownership or shared health insurance, though I would try it for the right clients.

If our polyamorous triad wishes to have children and to co-parent as three, a careful co-parenting agreement could attempt to protect the party who is not a biological parent. It can be similar to the custody agreement or parenting plan that divorcing parents might create to address custody and visitation access, proportions of financial support, and the division of parenting decisions about schooling, medical care, and religion. (Such contracts can also be useful for platonic co-parents or for unintended parents from an accidental pregnancy who are not in a serious relationship.) In some states like Alaska and California, third parent adoptions have three adults recognized as legal parents, often in a context of a gay or lesbian couple with a platonic co-parent of the different sex.

The status of non-biological third parents who have not been able to achieve an adoption is legally nebulous. Over 20 states, such as New Jersey and Wisconsin, acknowledge an emotional or de facto parent, at least in two-parent families; my state of New York does not. In co-parenting agreements for polyamorous triads, I include all the factors that other states have included as a supportive basis for granting rights to third parents, such as an established parenting relationship with consent of the legal parents, financial contribution to the child's support without expectation of reimbursement, and the legal parents' intention for the emotional parent to have visitation rights and a continued connection with the child even if they split up. I try to keep my clients from court, but in case they do seek court intervention to enforce the agreement against one another, I try to create agreements that might be considered legally enforceable and could push forward state law. Nonetheless, the clients understand that in these situations, a judge could decide that they don't have rights to a continued relationship with a child they know as their own.

After 10 years of practice, none of the hundreds of envelope-pushing agreements I've drafted for clients has been challenged in court. I don't think this is a coincidence, nor is it bad luck for me as a potential precedent setter. The process of negotiating creative family agreements takes careful forethought. These families don't—can't—happen accidentally, as many pregnancies do, or by default, as marriages do when couples think it's their only option. Instead, their thoughtful, conscientious design can help create the very stability lawmakers seek when they valorize and privilege traditional marriage.