Premarital agreements are fairly common in the family law realm, also known as prenuptial agreements, or prenups for short. In Arizona, prenuptial agreements are governed by the Arizona Uniform Premarital Agreement Act, which can be found under A.R.S. 25-201. The beauty of a prenuptial agreement is that you and your potential spouse are afforded the power to be able to agree as to what each spouse’s legal rights and obligations may be throughout the lifetime of the marriage.

As Arizona is a community property state, prenuptial agreements allow parties to agree as to what assets and debts may be considered as “community” or “separate” property. However, the point of this article is not to discuss what types of community assets and debts can be deemed as separate property, but to discuss another issue—polyamorous relationships. Polyamorous relationships are becoming more and more common today, as opposed to 20 to 30 years ago. Many may view polyamory as an excuse for people in otherwise committed relationships to cheat on their significant others, when in reality, polyamory involves individuals being in committed romantic relationships with multiple people.

Typically individuals in monogamous relationships who seek a prenuptial agreement, may include an “infidelity clause” in their prenup. An infidelity clause can be viewed as a mechanism that can potentially prevent a spouse from engaging in an extramarital affair. If a party were to engage in an extramarital affair, then the aggrieved spouse could receive some type of benefit that the parties would otherwise agree to within the terms of the prenuptial agreement.

So can a couple engaged in a polyamorous relationship still consider an infidelity clause within their prenuptial agreement if they were to obtain one? The answer is yes. Just because a couple is engaged in a polyamorous relationship does not mean they cannot enter into a prenuptial agreement. The polyamory is just another component of the relationship. Couples engaged in polyamorous relationships can otherwise still be afforded the benefit of a prenuptial agreement, including the inclusion of an infidelity clause. So long as a couple can define the boundaries of their relationship, monogamous or polyamorous, there is room to explicitly define the terms of the infidelity clause.

Views on infidelity can be subjective. Some may view flirting with another as a form of cheating, while others may view engaging in any physical acts of intimacy as cheating, while others may view forming an emotional connection with another as cheating. In sum, the definition of cheating can be subjective and broad. Hence the need to define “infidelity” in any type of marital agreement may be necessary, especially when polyamorous relationships are starting to become more common. The fact is, trust can still be broken in a relationship, even when a party may be engaged in a polyamorous relationship; it does not mean that the party whose trust was broken should not be protected in their marriage.

While many view prenuptial agreements as “anticipating the marriage to end”, it is quite the opposite. Prenuptial agreements should be considered as a way to not only protect yourself, but to protect your spouse as well. Ending a relationship is never easy, especially when you spend a significant amount of time building a life and future with your partner, only for it to come to an end. While going through a divorce may not be easy, having a prenuptial agreement may otherwise ease some of the emotional toll that a dissolution proceeding may bring to both parties. A good family law attorney can draft a prenuptial agreement and include various terms and elements within the prenuptial agreement, especially an extensive “infidelity clause” that can define the boundaries of cheating, in both monogamous and polyamorous relationships.

At Davis Miles McGuire Gardner we handle all aspects of family law cases, especially drafting prenuptial agreements. Feel free to contact the firm and speak with one of our family law attorneys if you would like to discuss the issues discussed above or any other family law related questions that you may have.

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