Many Americans are opting to do away with “traditional,” monogamous marriages, opting instead to enter into “open marriages.” Though legally, there is no difference between a “closed” and “open” marriage, the parties themselves may feel very different about how their relationship with their spouse should work. In marriages where both parties consent to dating or having sexual relations with others outside the marriage, both parties need to be on-board with the decision for the marriage to last.
If either party reconsiders the arrangement, they may want a divorce. Legally, either or both parties may have technically committed “adultery” – but how does California law treat adultery in an open marriage? The Ventura divorce lawyers at the Law Offices of Bamieh and De Smeth explain:
Is Adultery Grounds for Divorce in Open Marriages?
In California, divorces are not based on “fault” grounds. Instead, California is a “no-fault” divorce state, where the spouses can get a divorce if they have “irreconcilable differences.” In other states that have fault grounds for divorce, you must prove in court that the other spouse did something wrong, and you deserve a divorce based on those grounds.
In states that follow fault-based divorces, one of the common grounds for divorce is adultery. In many of these states, there are defenses to divorce. When one spouse accuses the other of adultery, and requests a divorce based on that adultery, the spouse asking for divorce usually must be “innocent and injured.” This means that if they also committed adultery, the defendant can block the marriage based on the defense of “recrimination.” Recrimination blocks a divorce with proof that the party seeking the divorce is just as “at-fault” as the defendant, and cannot claim those grounds for divorce.
Alternatively, the defenses of “condonation” or “connivance” may apply. “Condonation” blocks divorces when the injured spouse knew of the adultery, did not object, and continued to stay in the relationship after finding out. This is common in many open marriages, and can block divorce when the spouse condoned the extra-marital relationships. In some open marriages, the spouses may set each other up for relationships with other people. If one spouse contributed to the adultery or helped the other spouse “commit adultery,” courts will block divorces under a defense called “connivance.”
This means that in states that allow divorce for adultery, being involved in an open marriage may prevent adultery grounds from working. If one spouse later changes their mind about agreeing to an open marriage, they may not be able to change their mind and claim adultery to get a divorce.
No-Fault Divorces in California for Adultery
In California, none of these defenses apply. Because CA has no-fault divorces, you do not need to claim or prove adultery to get a divorce. Instead, you merely need to show that you have irreconcilable differences with your spouse, and want to be divorced. This is a huge benefit to those who want to end or leave an open marriage.
If you had to rely on proving adultery to get a divorce, you may not be able to do so in an open marriage. Because both parties often agree to allow the other spouse to have relationships outside the marriage, defenses like condonation, connivance, or recrimination may block divorces based on adultery. Because California only allows no-fault divorces, there is no need to prove either party did anything wrong.
California’s divorce system simply requires the parties to claim they have irreconcilable differences before the court will grant a divorce. Sometimes, the courts may order the parties to have a trial separation period or undergo couples’ counseling to see if they truly cannot reconcile their differences. Other times, courts will take the parties’ word for it and grant the divorce.
In any case, disagreement over an open marriage is a fundamental difference that parties may be unable to reconcile. If one spouse no longer wants the marriage to be “open,” they may not be able to convince the other spouse to close the marriage. These kinds of differences are very difficult to overcome and may be a legitimately “irreconcilable difference” that could justify divorce to a court.
Ventura, California Divorce Lawyers
Talk to an attorney about your options for divorce in California. In many cases, CA’s no-fault rules protect polyamorous individuals and monogamous individuals alike, by creating a divorce system that tries to avoid blaming either spouse for divorce. For a consultation on your no-fault divorce, or a divorce from an open marriage, contact the Ventura family lawyers at Bamieh and De Smeth today. Our lawyers have decades of experience handling divorce cases, and may be able to guide you through the process of filing for divorce, seeking asset division, and handling child support and custody disputes. For your free consultation, call our Ventura law offices today at (805) 585-5056.