How Texas Punishes Open or Ethically Non-Monogamous Marriage


How does the law treat open or ethically non-monogamous marriage? Whether spouses have a “free pass” list, one spouse gets a hall pass, or the spouses engage in polyamory, swinging, swapping, or polygamy, they are engaging in open marriages.

Let’s discuss ethically non-monogamous marriages, aka open marriages.

Are open or ethically non-monogamous marriages recognized under the law?

There are plenty of societal changes that do not yet have any legal guidelines for when problems arise. While everything is going fine in an open or ethically non-monogamous marriage, there is no need to really worry about consequences. However, things can get complex fast when problems arise.

The first question you may have as the reader is: what is an open or ethically non-monogamous marriage? The general implication for being open or ethically non-monogamous is that one or both persons within the marriage are having an intimate or dating relationship with at least one person outside of the marriage that is accepted behavior by both parties to the marriage.

The sticky issue is that the laws for the State of Texas and the Federal Government do not address open or ethically non-monogamous marriages with any legal guidelines or definitions. There are no protections provided by either which would give clear guidance on the outcome of any legal issue that arises because of a dispute within an open or ethically non-monogamous marriage.

If I am dating, and my spouse is fine with it, am I still legally committing adultery?

Yes. While the Texas Family Code does not define adultery, Texas caselaw has established that “adultery means the ‘voluntary sexual intercourse of a married person with one not the spouse.’”

In re Marriage of C.A.S. & D.P.S., 405 S.W.3d 373, 383 (Tex. App.—Dallas 2013, no pet.), quoting In re S.A.A., 279 S.W.3d 853, 856 (Tex. App. —Dallas 2009, no pet.).

Again, this does not automatically cause a legal issue as there is no civil or criminal penalty for it in Texas. However, serious complications can arise during a divorce when someone has committed adultery.

Texas allows for “no-fault” divorces, which just means that proving one spouse is at fault for the break-up of the marriage isn’t necessary. However, if one side pleads a fault ground, the court may consider this in awarding a disproportionate share of the marital estate to the non-offending spouse.

“The court may grant a divorce in favor of one spouse if the other spouse has committed adultery.”

—See Tex. Fam. Code § 6.001 Insupportability & § 6.003 Adultery

According to the definition provided by case law in Texas, any form of voluntary sexual intercourse outside of one’s spouse is automatically adultery and may be considered by the judge deciding the divorce. While there may have been an agreement between the parties, this can devolve into a muddy mess if one side rescinds their acceptance.

Additional difficulties may arise when actual adultery occurs within an open or ethically non-monogamous marriage when one spouse exceeds the boundaries set within the relationship. Remember, the law states that all voluntary sexual intercourse outside of one’s spouse is adultery within a marriage regardless of the relationship boundaries set by the couple.

Defenses to Adultery?

Things get dicey when one spouse changes their mind about the openness of the marriage and divorce proceedings commence.

When facing a divorce under these circumstances it may explode and spiral into a “us versus them” dogfight. In a dogfight, everyone has a tendency to drag everything private to the light either to attack the other side or defend themselves.

The Texas Family Code states: “(a)  The defenses to a suit for divorce of recrimination and adultery are abolished. (b)  Condonation is a defense to a suit for divorce only if the court finds that there is a reasonable expectation of reconciliation.”

—See Tex. Fam. Code § 6.008 Defenses

This clearly shows that the legislature does not view adultery as having a defense. As written, it takes all individuals seeking to have amicable open or otherwise ethically non-monogamous marriage, and groups them with secret philanderers. This creates a loophole for any partner within the marriage who feels slighted to exploit for their own financial gain.

For the second part, condonation is defined as a victim’s express or implied forgiveness of an offense, especially by treating the offender as if there had been no offense. One spouse’s express or implied forgiveness of a marital offense by resuming marital life and sexual intimacy. For example, one spouse might impliedly forgive the other spouse’s infidelity by continuing to live with him or her.

However, in Texas, the defense of condonation is tied to a “reasonable expectation of reconciliation”, which means it cannot be used as a defense without this consideration. This is unfortunate as the partner now accusing adultery within the open or ethically non-monogamous marriage has the upper hand if the accused partner has little evidence of their expectation of reconciliation for their defense.

Will I Be Penniless And Have My Kids Taken If the Judge Believes My Spouse?

You’re getting ready for your day in court and are worried that the judge will throw the book at you for your “adultery.” Before you grab a cardboard box and say goodbye to your loved ones, you need to realize it is not the end of your world. The bait and switch by your partner may hurt, but you need to understand exactly what it means when the Court grants a divorce “in favor” of a spouse.

What this means is that the non-offending spouse can get an uneven share of the community property. While the exact amount is up to the discretion of the court, it is aimed to compensate the not at fault spouse for what benefit they missed out on during the marriage and might have gained if the marriage had continued. It is aimed at the fault and its effects on causing the dissolution of the marriage and not designed to be unjustly punitive in nature.

As for your child, the court’s focus is on their best interest.  “The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.”

While there is nothing in the law which says that the court cannot consider adultery when determining the child’s best interest, the law also does not say that adultery by a parent is presumably against the best interest of the child. However, there is a big difference between a casual encounter away from the child and introducing the child to your extramarital partner as “second mommy/daddy.”

This is a case-by-case type of issue, but since it is only one factor of many that the court may consider in determining the child’s best interest, it should not affect your relationship with your child unless you have truly acted against their best interest.

What Should I Do To Prevent This Tragedy?

To prevent this tragedy, you need a good family law attorney! What other advice did you expect to get from a family law attorney?

When it comes to open (or otherwise ethically non-monogamous) marriages, it is important to see what consequences you might face and how you and your marital partner can mitigate this before anything bad happens. A carefully worded pre-nuptial agreement could help you to avoid any harm that comes from an adultery accusation. If you’re already married, then you might be able to address some of these issues in a post-nuptial agreement.

Again, whether these are available options will depend on your specific circumstances, so please get legal counsel that is tailored to your specific circumstances.

–Authored by Colton M. Sniegowski, Esq.

Matthew Harris Law, PLLC – Family Law Division

1101 Broadway, Lubbock, Texas, 79401

Tel: (806) 702-4852 | Fax: (800) 985-9479

[email protected]