The numbers are either very impressive or highly offensive – depending upon your perspective.  But the fact remains that when the Ashley Madison hacking scandal came to light, it was revealed that this website, designed solely for spouses interested in having an affair, has at least 39 million users in 53 countries.  What? You ask in disbelief. Yes, you read that correctly.  Ashley Madison actually has 4 million more users than the entire population of Canada.  We can all sit around and have dinner conversations about the erosion of society’s morals, or that we all may be banished to Satan’s lair sooner rather than later- but these types of discussions, while compelling, won’t stop this train- and probably won’t even slow it down.  And the truth is that spouses have been finding ways to cheat on other since the dawn of time.

If you are a spouse who wants to cheat, the tides are not with you.  Society still vilifies cheaters no matter how good the excuse.   Adultery is still grounds for divorce in states where fault if required. Even in no-fault states, adultery can still be considered in awarding alimony and in some instances when dividing property.   It is one of the three deadly sins of marriage- abuse, addiction and adultery (what I call the three A’s), which are the three hardest issues to get past in a marriage.   And that’s between the parties!  Condemnation from society is also swift, ruthless and unforgiving. We all recall the young Puritan girl depicted in The Scarlett Letter whose punishment for infidelity was the shame of wearing a large “A” on her dress.  Times haven’t changed much since then.

One way that some spouses are getting past the stigma is by approaching their spouses about agreeing to an open marriage. Seems simple enough.  That is until little things like jealousies and sexually transmitted diseases become killjoys and spoil all the fun.  But what if you define a set of rules (perhaps a la Jerry and Elaine in the Seinfeld episode “The Deal”)? What should you consider when sitting down to compose this new marital code of conduct?

The very first rule has to be that if your spouse ain’t into it, then laugh it off, say you were just joking, never bring it up again, and plan to either stay faithful forever or get divorced.   On the other hand, if you have a willing spouse, who is truly into the idea (without any coaxing, cajoling or pressure from you) then establishing a clear set of boundaries may help the process flow much more smoothly.  (Sidenote:  I should mention at this point that this author has never tried this at home but has been a divorce attorney for 16 years). Rules will be as unique as each couple but here are some guidelines to assist you in formulating yours.

1. Use protection.  Both of you should get tested for all sexually transmitted diseases before embarking on this new adventure and agree to get tested at regular intervals. Whether you’re a man or a woman, plan to arm yourself with the strongest, best condoms on the market.

2.  Be honest.  Agree to tell each other about each encounter – the level of detail is up to you- but when it happens the other one should be informed.  The two of you can also decide if possible encounters should also be disclosed, or how you met the possible prospect, or how long after the event, should it be disclosed.

3.  Agree that your relationship comes first.   Discuss what happens when one of you develops feelings for a third party. Do you immediately terminate that liaison?  Also discuss what happens when the third party develops feelings for one of you.

4.  Consider the children, and others.  Discuss what you will share with others and especially if you have children.  Take steps to protect them from being aware of what’s going on and exposing them to potentially damaging information.

5.  Address your state law in the event of a divorce.   If you live in a state where adultery can be grounds for divorce, or grounds for recovery of more alimony or an unequal split of marital assets, consider how your agreement for an open marriage will be construed.  Do you want to waive use of adultery as grounds for any claims?  Or limit the claims?

These are just a few of the things to think about.  Statistically, while there is little reliable data on what percentage of marriages are truly “open”, we do know that they very often don’t work.   But if this something you and your spouse truly want to do, then establishing ground rules and boundaries may help ensure the continued success of your marriage.

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