Posts Tagged ‘Family’
Volume 41, Issue 1 (2023)
All in the Family: How Polyamorous Families Can Use Businesses Models and Contracts to Secure Legal Benefits
By Jacqueline R. Brant*
While many Americans still view polyamory as a feature of small religious sects, an increasing number of people in the United States are now embracing polyamory. Recent surveys have shown that 1 out of 5 Americans have consented to plural relationships at some point in their romantic lives, and 3 out of 10 millennials are currently in non-monogamous relationships. 31% of millennials state that their relationship is, to some degree, non-monogamous, as opposed to 16% of baby boomers. While the face of polyamory has changed significantly, polyamorous families still face significant legal barriers beyond criminalization.
The term “polygamy” often has religious connotations – members of certain religions, including members of the Church of Jesus Christ of Latter Day Saints, some Hmong Americans, some sects of Islam, and some members of the Pan-African Ausar Auset Society, practice polygamy in which one man has numerous wives for religiously-motivated reasons. On the other hand, polyamory is an umbrella term for individuals who do not practice monogamy for a plethora of reasons. While popular culture has focused on polyamory as a feature of smaller religious groups, polyamory also exists as an identity within the LGBTQ+ community as well. Queer individuals who identify as polyamorous are oriented towards relationship structures that fall outside the general social structure of monogamy. Polyamorous relationships can look many ways – one person having many partners who do not overlap, polyamorous family units with more than two members, one person with a primary partner with other secondary partners, and more. Furthermore, polyamory is “not necessarily based on multiple marriages,” and polyamory as a queer identity emphasizes “the consensual nature of such a relationship choice.”
Despite the shift in social and cultural acceptability of non-monogamy, marriage to multiple partners is currently illegal in all 50 states, and federal law still criminalizes marriage to more than one person. With the exception of Utah, polygamy is a third-degree felony punishable by both fines and imprisonment. Utah is the only state that has updated their polygamy laws in accordance with these social changes, reducing the charge from a third-degree felony to an “infraction” similar to the severity of a speeding ticket. While news media focus on the sensational or inflammatory instances of polyamory and polygamy, they frequently ignore the very real legal and social inequities that these individuals face.
There are several arenas in which polygamous families are disadvantaged through a marriage ban, including health insurance, healthcare, tax filing, property laws, inheritance and estate laws, and housing law. In the realm of healthcare and health insurance, only spouses who are legally married may visit their partners in the hospital and be on their partner’s health insurance plan.
Child custody is another issue of complication for polyamorous families. Currently, only six states allow children to have more than two legal parents. In states where children cannot have more than two legal parents, parents in polyamorous family units have a lot to lose. While courts have given parents ample discretion in determining who may associate with their children, courts may still remove children from polyamorous families under the Uniform Marriage and Divorce Act (UMDA). While the UMDA prevents courts from “[considering] conduct of a proposed custodian that does not affect his relationship to the child,” courts may determine that the polyamorous lifestyle of a potential custodian can affect the “final determinations of ‘best interests.’” For example, in the Divelbiss case, a child was removed from a polyamorous family home on these grounds despite experts testifying that the child “had not been negatively influenced by her mother’s lifestyle”; the child was allowed to return to her parents only after the parents completed parenting programs and one adult of three living in the home moved out.
While many states do theoretically allow more than two official legal guardians of a child, many of the statutes and the case law addressing these issues do not apply to polyamory specifically – rather, they focus on solving issues with surrogacy, mistaken parentage, and methods to avoid the foster system after the death of biological parents. Thus, even in these states, polyamorous families still have a legitimate fear that their children can be removed from their custody. In the event that the family breaks up or the biological parent of a child passes away, a parent in the polyamorous unit has little to no parental rights over the child, no matter how long that parent lived with and took care of the child, permanently severing the parent-child relationship. In the case of death, the child would be placed in the foster care system rather than be placed with a person whom the child viewed as their parent. As noted above, children can also be denied other benefits from the recognition of a third parent as a legal parent, such as health insurance, child support, and more.
States have also struggled with how to address tax-filing issues with polyamorous families. These families are placed in the constant position of committing tax fraud – either filing jointly when unmarried or filing as single when they are married but not legally – because there is currently no tax group they neatly fit into, nor is there clarity as to how they should file at a federal level. The most common example of alleged tax fraud is women filing as single mothers in order to maximize the amount of federal funds they receive in order to support their children; because there is no way for state officials to verify or track unofficial or illegal marriages, polyamorous “wives remain single mothers in the eyes of the state, leaving them free to take liberties with welfare applications and understate income on tax forms.” Although many state prosecutors criminally target and prosecute polyamorous people using tax fraud statutes, it is not at all clear that polyamorists are really committing “tax fraud,” since many of these women do indeed qualify as single mothers under the tax law because their marriages are included within the definition of marriage under tax law. Thus, because polyamorous people do not fall neatly into any categories under the current tax law, polyamorous people are constantly and unavoidably policed for criminal tax fraud violations.
Finally, there is no legal mechanism that ensures each partner receives an equal and fair share of the jointly held property, including shared finances and homes. While judges are within their right to deny alimony in the case of a polyamorous family split – that is, court ordered spousal financial support – the judge may also deny palimony in these cases because there was no official marriage. Palimony – an equitable division of assets and financial support for cohabitating partners who were never married – can be denied by judges during polyamorous family break ups, “in effect, treating the [the polyamorous family] as less than cohabitants… [in order] to avoid legitimizing the illegal polygamous relationship.Additionally, palimony itself is not an option in all states – many states only recognize alimony, allowing little legal recourse for partners who lived together but were not legally marred. Finally, there are issues with shared assets in cases where only one partner of several are leaving the attempted partnership – here, it is unclear what a fair division of assets would be, considering the people who remain in the partnership still have active claims on those assets.
Thus, the issue for polyamorous families is not only do legal mechanisms not exist for these families to deal with healthcare, taxes, and marital property, but legal authorities will often refuse to even consider what equitable outcomes could look like for non-monogamous families. Because there is no official legal mechanism for division of assets, tax filing, or for child support, it is more difficult for individuals who leave a plural family unit to receive an equitable piece of the communal property and ultimately achieve financial stability and independence. Moreover, the lack of legal mechanisms for dealing with polyamorous family issues may actually leave the door open for increased policing and prosecution, such is the case with tax fraud violations as noted above.
Lawmakers, activists, and members of plural families should focus their attention not only on general legalization or decriminalization of polyamory family set ups, but also on fostering creative solutions to address their unique issues for things like child support, health care, and division of assets. Such laws would not necessarily be conditioned on legal marriage – rather, these types of laws could draw from housing and tenancy rights, as well as treating assets like an L.L.C.
While thinking of relationships in terms of a business model may seem counterintuitive, the legal benefits of thinking of multi-partner relationships in this manner are immense. Because “one of the legal benefits of a marriage is the ability to be viewed as a unit,” some lawyers have begun to structure “business” contract agreements for members of polyamorous families to mirror these same legal benefits. An LLC model allows polyamorous families to hold properties, have “a common health-insurance plan and bank accounts,” and “pay taxes as an L.L.C.” For example, one lawyer created an LLC in the name of a polyamorous family of three; all three members owned equal parts of the LLC, and the LLC in turn owns the family home and the family vehicle, and the contract additionally outlines the “parental rights and responsibilities of each person since in the current law of the land a child cannot have more than two official parents.” These types of agreements carry the full force of the law, and they allow polyamorous families to legally define their relationship. The issue with these LLC agreements is that it requires the household to engage in commercial activity and generate income by engaging in commercial activity; this can be difficult for families who are composed only of individuals who are homemakers or who work for outside employers. Thus, while LLC offers many solutions to legal issues faced by polyamorous families – especially for taxing purposes – creating a legal, functional LLC is not as simple as it might seem.
Other polyamorous families have utilized simple contracts as a framework to secure benefits that are traditionally reserved for marriage. Contracts are based on reciprocity, consent, acceptance of the agreement, and enforcement power which can trigger a breach if not followed. Thus, polyamorous couples can customize contractual agreements for the future, agreeing to certain provisions regarding rights, responsibilities, and financial entitlement; these contracts also carry the force of law, and are thus legally enforceable if they are broken by any party. The major downside to contractual agreements over LLCs is that while contracts are great methods of laying out responsibilities initially, they do provide flexibility for future changes in the relationship or financial situation of the family; they are limited to entitlements at the onset of the contract, not accounting for “obligations that may arise over time as the relationship evolves.” Additionally, it does not seem that contracts adequately address the tax issues either.
There are many creative solutions that the American legal systems, both federally and at a state level, could take to address the legal difficulties facing plural families. While some legal issues can be addressed through existing legal mechanisms by slightly tweaking the laws that already exist, other creative solutions should continue to be explored.While neither a contractual relationship nor an LLC-defined relationship perfectly addresses the needs of polyamorous families, they may serve as a starting point for legal recognition and protection of polyamorous families.
 Katie Bishop Ethical Non-Monogamy: The Rise of Multi-Partner Relationships, British Broadcasting Corporation LoveLife (Nov. 9, 2022), https://www.bbc.com/worklife/article/20210326-ethical-non-monogamy-the-rise-of-multi-partner-relationships.
 Jamie Ballard, One-Third of Americans Say Their Ideal Relationship is Non-Monogamous, YouGov American (Jan. 31, 2020),
 Andrew Solomon, How Polyamorists and Polygamists Are Challenging Family Norms, The New Yorker (Mar. 22, 2021),
 Adejoke Mason, What is Polyamory? Queer Relationship Experts Explain Everything You Need to Know, THEM (July 5, 2022).
 D. Marisa Black, Beyond Child Bride Polygamy: Polyamory, Unique Familial Constructions, and the Law 8 J.L. & FAM. Stud. 497, at 500 (2023).
 Is Polygamy Legal in the United States, HG.org Legal Resources, https://www.hg.org/legal-articles/is-polygamy-illegal-in-the-united-states-31807.
 Polygamy: The Crime, Law Library – American Law and Legal Information, https://law.jrank.org/pages/9272/Polygamy-Crime.html.
 Ben Wilson, After Utah Decriminalized Polygamy, Some See a Culture Shift, US News and & World Report (Apr. 24, 2022),
 Laura Gozzi, Samuel Bateman: Polygamous Cult Leader Had 20 Wives, FBI Says, British Broadcasting Corporation (Dec. 7, 2022), https://www.bbc.com/news/world-us-canada-63885426; Polygamous ‘Prophet’ Leader Had Child Brides, Documents Say, National Public Radio(Dec. 8, 2022),
https://www.npr.org/2022/12/08/1141508061/polygamous-prophet-leader-had-child-brides-documents-say; Chris Baynes, Warren Jeffs: Child Bride Reveals Horrors of Life Under Fundamentalist Mormon Sect Leader, Independent UK (Feb. 20, 2018),
https://www.independent.co.uk/news/world/americas/warren-jeffs-child-bride-horrors-mormon-sect-leader-elissa-wall-a8219246.html; Jesse Hyde, A Polygamist Cult’s Last Stand: The Rise and Fall of Warren Jeffs, The Rolling Stone (Feb. 9, 2016), https://www.rollingstone.com/politics/politics-news/a-polygamist-cults-last-stand-the-rise-and-fall-of-warren-jeffs-230800/; Brooke Adams,Testimony Shows Man Took Teen Bride After “Marriage’ with Her Mom, The Salt Lake Tribune (July 8, 2006), https://archive.sltrib.com/article.php?id=4026754&itype=NGPSID.
 Solomon, supra note 4.
 Courtney G. Joslin and Douglas NeJaime, The Next Normal: States Will Recognize Multiparent Families, The Washington Post (Jan. 28, 2022), https://www.washingtonpost.com/outlook/2022/01/28/next-normal-family-law/; Jennifer Peltz, Courts and “Tri-Parenting”: A State-by-State Look, AP News (June 18, 2017), https://apnews.com/article/4d1e571553a34cfbb22b72249a791a44. The states that allow multi-parenting are California, Delaware, Maine, Vermont, and Washington. Courts in various states have grappled with child custody issues involving more than one parent not only in the polyamory arena, but in cases of stepparents and surrogacy as well, and some courts have been willing to grant more than two individuals legal guardianship over the child.
 Black, supra note 8 at 503 – 504.
 Black, supra note 8 at 503 (2023); Ian Jenkins, Children With Three Parents? A History of Multi-Parentage, Psychology Today (Feb. 22, 2021), https://www.psychologytoday.com/us/blog/better-or-worse/202102/children-three-parents-history-multi-parentage; see generally In re Marriage of Divelbiss, 308 Ill. App. 3d 198, 719 N.E.2d 375 (1999) (holding that the custody arrangement resulting in the removal of a child from the custody of polyamorous parents until the parents made changes to their family arrangement).
 Peltz, supra note 15.
 Black, supra note 8 at 503 – 504; Jenkins, supra note 18; Elisabeth A. Sheff, Child Custody Issues for Polyamorous Families, Psychology Today (May 22, 2017), https://www.psychologytoday.com/us/blog/the-polyamorists-next-door/201705/child-custody-issues-polyamorous-families.
 Joslin and NeJaime, supra note 15.
 Richard A. Vazquez, The Practice of Polygamy: Legitimate Free Exercise of Religion or Legitimate Public Menace? Revising Reynolds in Light of Modern Constitutional Jurisprudence, 5 N.Y.U. J. Legis. & Pub. Policy 225, 244 – 245 (2001).
 Samuel D. Brunson, Taxing Polygamy, 91 Wash. U. L. Rev. 113, 144 (2013).
 Brunson, supra note 26; Vazquez, supra note 25 at 245; Polygamy Czar Forecasts More Prosecutions Soon, The Daily Herald (May 14, 2003), https://www.heraldextra.com/news/2003/may/14/polygamy-czar-forecasts-more-prosecutions-soon/.
 Solomon, supra note 4; Brian Palmer, Kramer vs. Kramer vs. Kramer: How Does Polygamous Divorce Work?, Slate (July 25, 2012),
 Palmer, supra note 28; What’s the Difference Between “Alimony” and Palimony”?, Law Offices of David L. HIrschberg, P.A., (Mar. 22, 2017), https://www.dhirschberglaw.com/whats-the-difference-between-alimony-and-palimony/.
 Palmer, supra note 28.
 What’s the Difference Between “Alimony” and Palimony”?, supra note 29; Heidi Glenn, No, You’re Not in a Common-Law Marriage After 7 Years Together, National Public Radio (Sept. 4, 2016), https://www.npr.org/2016/09/04/487825901/no-you-re-not-in-a-common-law-marriage-after-7-years-of-dating. States recognizing common law marriage and palimony include Alabama, Colorado, DC, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, South Carolina, Texas, and Utah.
 Palmer, supra note 28.
 Diane J. Klein, Plural Marriage and Community Property Law, 41 Golden Gate U. L. Rev., 33, 38–40 (Dec. 2010), https://digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?article=2027&context=ggulrev.
 Solomon, supra note 4.
 Gena Jaffe, Legally Protecting Polyamorous Families in a Monogamous World, Connecting Rainbows, https://connectingrainbows.org/legally-protecting-polyamorous-families-in-a-monogamous-world/.
 Polyamory – The Family Business, Zeed Meyer Law PLLC (Mar. 1, 2021), https://zeedmeyerlaw.com/polyamory-the-family-business/.
 John Enman-Beech, Drawing Contract and Polyamory Together Or: How I Found the Limits of Liberal Legality in Kimchi Cuddles Comics, 36:1 Canadian Journal of Law and Society 89 at 7 (2021).
 Id. at 7 – 8.
 Id. at 7 – 8.
 See generally Klein, supra note 34 (outlining several methods and proposals that would help the United States judicial systems address property and child custody in plural marriages).
 Id. at 62–78.
 Solomon, supra note 4.
*Jacqueline R. Brant is an staff member of the Journal of Law & Inequality, Vol. 41.