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September 20, 2023 Podcast

Open Marriage & How it Can Impact Divorce

Gailor Hunt
Gailor Hunt
Open Marriage & How it Can Impact Divorce

Join us as we tackle the intriguing and often taboo topic of open marriages and their potential effects on divorce cases. In this episode, Jaime is joined by fellow Gailor Hunt attorneys Melissa Essick and Grace Massarelli to discuss the legal implications that arise when couples have consensual non-monogamous relationships. Interestingly, they have recently seen an increase in divorce cases involving open marriages.

Discover what defines an open marriage, why couples consider an open marriage, the importance of communication and boundaries, and how it can influence custody, alimony, and equitable distribution claims. Jaime and her colleagues discuss the importance of a written contract, which can show intent, although it’s not legally binding in North Carolina. The legal implications on divorce are still a very much gray area in the state, but this episode will help to unravel this complex situation from a divorce standpoint.

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Note: Our Podcast, “A Year and a Day: Divorce Without Destruction”, was created to be heard, but we provide text transcripts to make this information accessible to everyone. All transcripts on our website are created using a combination of speech recognition software and human transcribers and could contain errors.

Jaime: Welcome to A Year in a Day. I’m Jaime Davis, Board Certified Family Law Attorney at Gailor Hunt. On this show, I talk with lawyers, psychologists, and other experts with the goal of helping you navigate divorce without destruction. In this episode, I’m speaking with Melissa Essick and Grace Massarelli, two of my fellow family law attorneys and colleagues at Gailor Hunt. We’ll be discussing the ways in which having an open marriage can potentially impact your divorce. Melissa and Grace, thank you both for joining me.

Grace: Yes, thank you for having us. We’re excited.

Melissa: Yes, thank you for having us.

Jaime: So our topic today is a little bit different, but in our practice, I have been seeing an increase in the number of clients who are in open marriages, and many of them are surprised to learn how their open marriage can potentially impact their cases. So I thought it would be helpful for us to talk through the legal claims that can arise from a separation and how an open marriage might impact those claims. So first and foremost, what is an open marriage?

Melissa: Generally speaking, an open marriage is when both people consent that they can either have a dating relationship or a sexual relationship outside of their marriage. and that can look many different ways.

Jaime: Right, I mean, I’ve also heard it referred to as consensual non-monogamy, which I think is a really interesting term. Grace, have you found any other definitions of open marriage?

Grace: No, I think that it’s not a one size fits all. We have, you hear the word open marriage and your brain can kind of go a thousand different ways and I think that we’ve seen that in our practice. I don’t think that one marriage defines it the same, but when there’s a baseline of open communication and understanding, it really can be whatever that might look like and it doesn’t necessarily mean that you’re in a sexual relationship outside of your marriage, but it could be one person coming into the marriage or two. I think that it’s a very fluid idea that in 2023 is coming more and more common.

Jaime: Yeah, I read something recently that because of the pandemic, folks who were not necessarily happy in their current relationships were exploring the idea of open marriage and that perhaps, you know, who knows if this is true. I don’t know that there’s any scientific research to back this up, but that there has been an increase in the number of open marriages as a result of the Pandemic. I thought that was interesting.

Melissa: That is interesting. Yeah. I mean, in my experience, what I see is people that are exploring other options, like maybe they’re not getting enough affection in their marriage. Maybe they’re looking to explore some other sexual, you know, endeavor. Yes, perhaps. It’s a great word. Yes. And so as long as both parties consent, I think that’s the, that’s really what’s key. I mean, it’s not an open marriage, obviously, if you don’t know exactly what’s happening and you don’t agree and consent to it. Right. It’s not like one spouse can be like, you know what, I’ve decided I’m going to have an open marriage. And then they don’t tell the other spouse about it. Right. That’s what we classify as an affair. Right. That’s when it’s no longer open. I think that that makes a lot of sense and it’s interesting the correlation and maybe as time goes on, there will be some research on that between COVID and the Pandemic and being shut down and open marriages. Cause I think that we’ve seen a spike in clients just, sometimes you see it after the holidays, okay, I’m never doing a Christmas again, or I’m never, some of them are, I’m never doing a Pandemic again. That was a lot of time with my spouse. So whether this is kind of another avenue that couples are going toward instead of we should end this marriage kind of conversation.

Jaime: So in your experience, do open marriages tend to have rules?

Melissa: I think they have to. In order to have that trust, most of the clients that I’ve… seen. And again, the people that we’re seeing, obviously, they’re going through a divorce or they’re going through a separation, so they’re on hard time. So we only see the bad side of this. situation because we’re divorce lawyers. But I do know of people that have open marriages that are very happy and satisfied with their marriage.

Jaime: Right. We’re not judging and saying this doesn’t work. We’re just, you know, talking about the side of this that we have seen, which is obviously when it’s on the down slide and headed toward divorce.

Melissa: That’s right. And most of the time when it’s on the downside, it’s because there were rules in place and those rules were broken and then you broken the trust. And so the rules can be, I’ve seen people actually have contracts written up in order to make sure that everyone is on the same page and knows exactly what’s allowed to happen and not allowed to happen.

Jaime: Yeah, I think that that is interesting. So I think the contract itself is probably not a valid on its face contract, right? Like it’s against public policy. I mean, In North Carolina, technically adultery is still a crime. And so obviously you can’t have a contract to commit a crime, right? That would be illegal. But I do think these contracts can be helpful if you ever find yourself in divorce court and you need some evidence of whatever your arrangement was with your spouse, you know, you’ve at least got this piece of paper that your spouse has signed saying, yes, I consent that we’re both allowed to see other people.

Melissa: Yeah, I don’t think it would be enforceable. by any means, but I think it shows your intent. Right. And what everyone’s idea was whenever you guys decided or consented to having an open marriage.

Grace: Right. Just like extrinsic evidence of we were on the same page and this is what we were on the same page about. I’ve seen rules such as, you know, I need to be there or there can’t be any video or photos taken. And what you said, Melissa, about once the rules or the terms of the contract is one doesn’t abide by that, it really is the trust that’s broken, which is just when it that’s you know, how they come to us. While it’s not enforceable, I think that it’s really just a trust in boundaries kind of situation. Help to establish the rules, so to speak.

Jaime: Well, and I think that can be helpful for us too, as divorce lawyers, when, you know, these clients end up in our office and they’re asking us questions about, you know, how can my behavior in this open marriage potentially impact my case? And if we can see a piece of paper that, you know, sets out what both folks thought was supposed to happen, I think that can help form our legal advice to the client.

Melissa: And definitely form what our explanation or argument or position would be if we ended up in court.

Jaime: Yeah, absolutely. So now that we’ve talked a little bit about open marriage and how it can look different for different folks and how they may or may not have a piece of paper that sets forth what their rules are, I think it would be helpful for us to talk through the legal claims that arise from any separation and how the open marriage might impact those claims. So in a regular family law case, you potentially have claims for child custody, child support, equitable distribution, which is the property distribution, post-separation support, and alimony. So let’s just start with the first one. Melissa, in your experience, in what ways can an open marriage potentially affect a person’s custody claim?

Melissa: Well, in North Carolina, if you end up in court in a custody case, the judge is going to be looking at what is in the best interest. of the child. and Really, as long as your behavior does not have a direct correlation on the child. it’s gonna have no bearing. Now if you’re bringing in people into the home and the child’s there or the child’s witnessing some behavior or somehow is. either directly or indirectly, there’s some negative influence on the child, it could potentially have an impact. But if it’s just someone that’s having an open marriage and the child’s not aware and the child’s not involved at all, I don’t know that it would.

Jaime: Yeah, I mean, I think it’s no different in that case than a typical affair, right? Like if the child has no idea that mom or dad is seeing someone else, it doesn’t necessarily affect custody really at all. I mean, the cases where adultery, marital misconduct can impact a custody case are like what you said, Melissa. When it’s brought into the home, the child is aware of it, or maybe mom and dad are engaging in some really risky behavior, for example, maybe they’re meeting people online that they don’t know and they’re having one night stands and the person potentially could follow them back to the house and be a danger to the child. Right person has some kind of criminal background or something. Yeah, right.

Grace: And I think you have to be mindful of, you know, when you’re in this arena, just being mindful of your partner. And while it might not. be negatively impacting your child, it doesn’t mean that your ex-spouse isn’t going to try to leverage and weaponize that relationship against you. So really being mindful as you’re going through this process of yes, if we were before the judge, in a perfect world, this isn’t affecting the best interests of my children and everything is fine, but that doesn’t mean that your spouse isn’t going to try to weaponize that against you. So, I always want my clients to be mindful of, even though your spouse was with you and you guys were on the same page about this six months ago when you were married, now they may try to spin it in a different way. And just keeping that in mind as you go through the process.

Jaime: Right, I mean, that’s a really great point that you brought up, Grace. If your spouse is volunteering to babysit the children every single time that you want to go have a rendezvous with a third party, you may want to be a little wary of that, right? They may try to say, well, I mean, yeah, I was okay with it in theory that she was spending time with whoever, but at the end of the day, I’m then spending more time with our child and providing care for our child while she’s out doing who knows what with who knows who.

Melissa: Yeah, you become the primary caregiver and then you can use that, not necessarily the fact of what she was doing. I don’t know that it matters just being outside the home and just not being present. Absolutely. Could have an effect. Yes, I agree with that.

Grace: So would you say just a question for the crowd that if you were going through this and you and your spouse had the understanding of an open marriage and now you’re sitting at our table, what do we advise our clients? Do we just tell them to maybe pause the open relationship until after their case has settled or kind of how would we want to advise or tell people is probably the safest bet?

Jaime: So I think I would say to them what I would say to any client that when you were going through a separation You know, the dating relationship with whoever needs to be put on the back burner. Your focus, if you have children, needs to be on your children and making sure that they have what they need to make it through this life change and transition. And, you know, once they’re all stable and you’ve worked everything out with your spouse, you’ve settled your property, you’ve settled your alimony or whatever it may be, go date whoever you want, right? Like, but the child needs to come first in that situation.

Grace : Agreed.

Jaime: All right, so we’ve talked about custody. What about child support? Grace, do you think being in an open marriage can really have an impact on your child support case?

Grace: So I don’t think so. In North Carolina, we primarily you’re on the worksheet unless you make, I think it’s $480,000 now. It just changed. So you’re on the worksheet. So whether it really just looks at your income and expenses of extraneous expenses of the child or aftercare school, etc. So having an open marriage wouldn’t have any bearing on your child support claim.

Jaime: It’s really just a financial issue.

Grace: Yeah, that’s as easy as just plugging in numbers. So for child support, I don’t have any qualms that an open marriage would. be implicative of that.

Jaime: Melissa, what do you think about equitable distribution? Do you think an open marriage could have any impact on a person’s equitable distribution claim?

Melissa: Well, North Carolina is a no fault state. So really, if you’re looking at the distribution of assets and debts, where the presumption is it’s going to be split 50-50, no matter if there was fault quote, you know, in the marriage or not. It could potentially have an effect dependent on if there’s some financial implication with regards to the open marriage. So let’s say someone’s out spending thousands and thousands of dollars on this, you know, other third party. and the other spouse is not aware, that spouse may argue that there’s some marital waste there or that it wasn’t for the benefit of the marriage, it was for an outside purpose or a separate benefit. So potentially, but it’s unusual, I would think.

Grace: Right, like just kind of playing out a scenario of, you know, marital waste being money spent for a non-marital purpose, given that our state still considers an open marriage to be adultery, is there an argument that any money spent toward your open marriage would have been marital waste?

Melissa: Again, I think you would have to look at the consent and what the two parties had in mind when they… establish the rules, so to speak, of the open marriage. someone’s consenting that they can go on dates with other people, they can’t then later then turn it against them and say, hey, I’m going to try and kind of claw back this money that you spent. at the hotel or, you know. taking them out to dinner.

Jaime: I mean, I think at that point, right, like equitable distribution is about what’s equitable. And I think the person would not have a clean hands argument to use some legal jargon to try to make a claim to get that money brought back into the estate.

Melissa: Right. I think it would have to be something that was non-consensual or something that they didn’t otherwise expect.

Jaime: Yeah, I agree with that. All right. Let’s talk about the biggie and whichever one of you wants to respond to this, feel free to jump in. What about post separation support and alimony? I mean, I guess we should talk first about kind of the standards for those two claims and then. how the open marriage might impact those claims.

Melissa: Right. In North Carolina, the first step in the analysis of alimony is whether or not you’re a dependent spouse. And if you are a dependent spouse in North Carolina, or a statute state. that you are barred or you waive your right to alimony if you commit adultery. Likewise, on the flip side, it’s kind of punitive in nature. If you’re the supporting spouse and you commit adultery, then the statute says you shall pay alimony. It doesn’t say how much or for how long, but it definitely says shall, meaning the court has to reward.

Jaime: You’re gonna pay something.

Melissa: That’s all right, you’re gonna pay something. And so if you look at it from that standpoint, obviously adultery, you know, if someone’s having a sexual relationship outside their marriage, it is technically adultery. But then we have to look at was there consent? And how would that affect a judge’s ruling?

Grace: Right, like let’s say that you make a claim for alimony and the other side says, no, you’re barred. You had a relationship outside of the marriage and the one asserting the alimony claim is the dependent spouse. I think an affirmative defense would be, you know, this was an open marriage, which I think revives your alimony claim.

Jaime: I think technically what you would argue is that it had been condoned, right? Like just in any other alimony case, if the dependent spouse has had an affair, the supporting spouse knows about it, they continue to be married, they continue to have sexual relations. The argument is that the supporting spouse has condoned that marital misconduct and you know, it is a conditional forgiveness, right? Like usually it’s that the marital misconduct not happen again, but here with an open marriage, I think it’s different because there is this ongoing consent, right? Like for so long as both folks are on the same page that they’re both involved in this open marriage, I think that, you know, there is an argument that there is still an alimony claim because the other spouse has condoned the marital misconduct.

Melissa: Right. And I also think if both people are having sexual relations with other people, it’s different because the statute says that it’s within the discretion of the court. If the dependent spouse has cheated and the supporting spouse has cheated, it’s within the discretion of the court. So then it becomes who’s sympathetic to the judge.

Jaime: Who’s the judge. Yeah, absolutely.

Grace: And that’s kind of where we always advise our clients, you know, you don’t want to be in court. You don’t want to be in front of a judge because then it really does, you’re both on equal playing ground, right? And now it becomes kind of a tedious process to show the judge, well, yes, we at one point agreed to this and then we didn’t. So I think that goes back to having a written contract while unenforceable is against public policy, just to show the judge, you know, these were the parameters of our agreement. And this is how we either abide by that or how we didn’t. So I think that that’s helpful just as evidence.

Jaime: Well, so tell me what you guys think about this. So a big part of our job as lawyers is to help folks mitigate risk. Right, like a lot of times we can’t completely take the risk away, but we can help folks, you know, counsel them to take actions that are going to reduce their risk. I mean, if you’re the dependent spouse, the person who needs alimony and you are participating in an open marriage, I feel like that’s really risky.

Grace: Yeah, really risky.

Melissa: And I don’t know, there’s no way to 100% protect that person. I mean, you can reduce the risk. And I think one of the things is. if you do have something that’s in writing that’s evidence that there was an open marriage, because people have selective amnesia, right? At one point, you’re sitting at the table and you and your spouse agree that there’s this open marriage and everyone’s participating until someone’s not. And then you get to court and everyone forgets what the rules were or what we all agreed to. And it becomes he said, she said. And then, you know, if we don’t have any evidence as lawyers, you know, we’re only as good as what our facts and our evidence provide. And so we need to, you know, the more evidence or the more information we can provide to the court, the better we can do our jobs. Well, and you know, on the flip side, you know, alimony is not always, I’m going to put this in air quotes, fair, because, you know, our statutes completely bar a dependent spouse from receiving alimony who has committed adultery. But on the flip side, it says a supporting spouse shall pay alimony. Okay, fine. They’re going to anyway, because, you know, alimony starts off as a financial analysis. Like, does the other person need money from you to pay their bills? The answer to that is yes. Then you look to the supporting spouse and say, Okay, after supporting spouse pays his bills, does he have enough money to pay alimony? And if the answer is yes? great, there’s going to be some alimony. Whether or not the supporting spouse cheated is basically irrelevant in my opinion.

Jaime: Yeah, I think for different judges, it’s probably different. I mean, it could sway the needle maybe. Right, maybe you get a longer duration. Right. Or maybe if everyone’s going to be reducing their custom standard of living, maybe it’s the supporting spouse that they cheated. There’s some putative nature in that.

Melissa: Yeah, I think for different judges, it’s probably different. I mean, it could sway the needle maybe. Right, maybe you get a longer duration. Right. Or maybe if everyone’s going to be reducing their custom standard of living, maybe it’s the supporting spouse that they cheated. There’s some putative nature in that.

Jaime: Yeah, they bear a little more of that burden maybe.

Grace: Right, but I think the exposure on open marriages definitely falls on the dependent spouse. For sure. I think that while the exposure is the dependent spouse, so then the question is, well, when you were sitting at the dinner table and were you the one that brought up the idea of an open marriage or is your spouse coming to you with the idea and kind of how do you… you know, hopefully people will listen to this and see, okay, this is what happens if I say yes or no, but I would definitely encourage anyone to pause and really think about it before jumping in with a hundred percent yes, just because there are implications that you’d want to be mindful of.

Jaime: I mean, think about this, you know, okay, cynical divorce lawyer, right? Like we always think of the worst case scenario, but what if you are a supporting spouse and you want to be separated and you know, you’re going to have a real big alimony obligation to your spouse because you’ve been supporting for years and years. I mean, what’s to stop you from having a conversation with your spouse about, Hey, let’s have an open marriage. You don’t really participate. They do. You know where they’re going to meet, whoever they’re going to meet, and you have a PI go follow them. I mean, you could totally set your spouse up.

Melissa: Well, it happens. We’ve seen it happen just like that. And so, and that is one thing to be mindful of. And I think it depends on probably what type of open marriage you have. I mean, there are some people that are participating in. they bring a third party in and the three of them are participating. So, you know, obviously I think that would be a little bit different, but yeah, we’ve seen that same scenario take place.

Grace: It’s almost like it feels like entrapment almost, but, you know, again, we’re three cynical divorce attorneys, but it’s not that this is so outlandish. You know, we’ve seen it happen or in cases where, you know, it was an open marriage and it was all consensual and then one partner falls in love with the other partner. And now we’re in a whole different arena, because then this other spouse is going to say, well, you know, you alienated the love and affection and now we’re in, you know, the claim and world of Alienation of Affection. And we might dive more into that, but can you really say that when at first you consented to this and how happy is your marriage if you’re inviting in another party?

Jaime: Well, and I will say this from the divorce lawyer perspective, the most common reason that I see folks who were in open marriages in my office for a separation is what you just said, Grace, that they were all on the same page about the open marriage and then one spouse or the other falls in love with the third party. And at that point, the marriage itself is done and they’re ready to be separated. So I think that’s a risk.

Melissa: Yeah, that’s what I would say. Mainly what we see. Yeah.

Jaime: So Grace, you mentioned Alienation of Affection. For folks that don’t know, there are, they’re called heart bomb torts in North Carolina. Alienation of affection and criminal conversation. These are actually claims that you can bring not against your spouse, but against the third party who your spouse had an affair with. Alienation requires that you prove a happy marriage with genuine love and affection existed between the spouses, that that love and affection was alienated and destroyed, and that the defendant, the third party, was the cause, that they caused the destruction of the marital love and affection. Criminal conversation is the other claim. It’s nothing about a conversation, and it’s not criminal.

Grace: Someone last week actually said, why is it called criminal conversation? And I really didn’t have a good answer for him.

Jaime: Yeah, I don’t know the answer to that either. But really all that requires is that there was a marriage that existed between two spouses, and that one of the spouses had sex with the defendant third party. Which is criminal. Yeah, technically. All right, sure, technically fine. But the conversation part, no.

Grace: Right, I was like, maybe it’s a conversation that led to a crime, so long, long ago, we called it criminal conversation. But I think it’s interesting that North Carolina is one of four states in our country that recognizes these claims. So I think that they’re a little bit nuanced in so far as we’re very much the minority of states that recognize this. But I think with an open marriage, if I was representing the third party who has now been sued, the first element of that there was a happy marriage where genuine love and affection existed. Now, our case law has been clear that a happy marriage doesn’t mean a perfect marriage, but I think that a judge, especially in North Carolina, would say, well, it also means that a third party isn’t being invited into your bedroom.

Melissa: Is the defense for the third party claim.

Jaime: In preparation for our conversation today, I actually did a little legal research to see what North Carolina thinks about open marriage. And I only found one case. And interestingly enough, it was an Alienation of Affection and criminal conversation case. And in that case, the court said when spouses agree to an open marriage, this is a complete defense to claims of Alienation of Affection and criminal conversation. So if you’ve agreed and consented to an open marriage, you are not going to be able to sue that third party.

Melissa: And these claims go in front of a jury. And so it really comes down to how sympathetic you are to a jury. And so I think that might also alter. their impression of your happy and genuine love and affection marriage.

Grace: Right, so a complete bar, that’s a complete defense. I mean, that’s strong language, right? We as attorneys couldn’t, I mean.

Melissa: Can’t really get past that.

Grace: Right, yeah, that’s pretty clear. Yes, yes. But I wonder, is there any way that you agree to the open marriage and then you just don’t agree anymore and you want to close your marriage again? How can you do that? Is it a complete bar? eternally where i agreed to it and now even though I’m saying, you know, I don’t want this anymore. Let’s stop this. Let’s go to marriage counseling. et cetera, et cetera, I’ve lost that claim. Like I guess my question would be, is it a complete and absolute bar for ever? Or can you kind of claw that back?

Jaime: Like revive it?

Grace: Right.

Jaime: So I think it depends on what happens. Like, do I think you can revoke your consent to an open marriage? Absolutely. And I think if you want to do that, you need to do it in writing, right? Because when we go to court, that’s the evidence we have, whatever you have put in writing. And so if, you’re going along in this open marriage and one day you’re like, I don’t want to do this anymore. I think it’s really important that in addition to talking to your spouse, which you should probably do first, that you put something in writing to him or her, right? Like a text message, an email, something that is very explicit that, Hey, I’m not on board with this anymore. I’m ready to, you know, get back to just me and you. And then I think it depends whether or not the other spouse agrees to close the marriage as to whether or not any potential alienation or criminal conversation claims could come back into the picture. You know, I still think they’re probably gone to any third party that you were involved with during the period of open marriage, but I mean, potentially maybe you could revive them with respect to any future behavior that you had been not consented to. Right. But then I think it goes back to the point you made earlier about the, you know, genuine love and affection in the happy marriage. The other spouse is just going to be arguing, well, if we were so happy, why were we in this open marriage? Why did we bring third parties into our relationship anyway? And so I think it could be a dual-edged sword there.

Grace: Yeah, I think that there’s argument to be made on both ends. And I think that just because we’ve started to see more of this, and I don’t know if that’s COVID or whatnot, in a few years, I think that we will have more case law and litigation surrounding this. Because I don’t think that it’s taboo, even though some people, you know, you don’t talk about it out loud. You’re not at a cocktail party saying, hey, so me and my spouse are in an open marriage, you know, at least not the cocktail parties I’m at. So, you know, I think that it’s becoming more and more common, and it’s something that has real implications, especially on your spousal support claims.

Jaime: So from a divorce lawyer’s perspective, and I want answers from each of you to this question, if you could only give one piece of advice to someone considering an open marriage, what would that advice be?

Melissa: I think there has to be complete transparency. I mean… you have to have a very high level. communication with your spouse and understand what the quote rules are of the open marriage because that’s where we see folks in our office is when those rules are either broken or the rules were not established and no one knows the rules. And I think the most important part is just making sure that you have this high level communication, this deep trust between the two of you and you understand what the rules are.

Grace: Right. And respecting, you know, whatever response your spouse may give, right? I have meetings and… And my client will say, and you know, five years ago, he asked me if we could have an open marriage and I didn’t agree to that. And then we had this big fight and bubble. You know, you have to be willing to understand and meet your spouse with where they are, which I think comes to the just full transparency and trust. And you know, I always encourage my clients to seek counseling, you know, just not to sway you one way or the other, but just to kind of work on the communication, work out what would this look like with our marriage? What would having an open marriage do? What are the ins and outs? Just really talk it to its death before you jump into it because it can be, you know, serious and you want to make sure that you and your spouse are on the same page.

Melissa: Yeah. And I think it’s important that you establish some boundaries, right? Like if someone starts having feelings for the other person, then I think that needs to be a conversation, an uncomfortable conversation, but a conversation nonetheless that you have with your spouse so that your spouse knows where you are and can say whether or not he or she is comfortable with you pursuing that relationship or continuing to pursue that relationship.

Grace: Right. And I think communication and over communication is key. You know, you and your spouse can set a date night once a month to check in with one another. You know, so it’s not six months down the road where we’ve done a lot of damage and you can’t really make up for the last six months of you emotionally, you know, neglecting me or whatever to the spouse who now is upset about the situation might say, but just have a time to check in with one another and saying, Hey, how are you feeling about the situation? This is where I am. But just making sure that you and your spouse are always the team that moves forward together.

Jaime: Yeah, those are those are great points. For me, I think it’s really important for the couple to understand why they are exploring an open marriage.

Grace: Definitely.

Jaime: Is it one spouse that is just really unhappy and they’re seeking happiness elsewhere? And so they want to be able to kind of test the waters with relationships with other people? Or is it something that both folks are really interested in pursuing? They think it’s going to make their marriage stronger and it’s something they want to do. Right. Like, I think the reason behind it matters. And I agree with you, Grace, that going to counseling is probably a really good way for the couple to figure out if they are on the same page. You know, if you find that your spouse is trying to coerce you into an open marriage, Probably not a good thing to try, right?

Melissa: One thing that’s come up as a common theme throughout our discussion today is And again, we’re cynical divorce lawyers, but… put something in writing. Absolutely. You know, it doesn’t like we talked about the it’s not necessarily going to be an enforceable contract, but it does show what your intent is. And I think it does help establish what the rules are. Unfortunately, if you end up in our office, it allows us to understand what the intent of the parties are and potentially show the judge and the court what those rules were.

Jaime: And hopefully you’re never going to need it. Hope for the best, plan for the worst. But at least then you’ll have that evidence in the event that your case does find its way into a courtroom.

Grace: Right. And you know, I just, little caveat, the writing doesn’t mean that your spouse has no idea you’re writing these secret rules down and signing and dating it. I mean, it needs to be something that both of you guys read or view, go to see a lawyer, you know, sign together, whatever that might look like. But I think that what you just said really just covers it all. You know, the reason behind it matters. And I think that if both of you guys are excited about this and wanting to do this endeavor, that’s one thing, whereas one spouse really being the individual that’s pushing it is, you know, different ballgame.

Jaime: Well, this has been a really interesting conversation. Is there anything else that either one of you would like to add? I think we’ve covered it.

Grace: Yeah, we’ve covered it. Thanks for having us. This is a taboo conversation, but it’s something that is affecting, you know, families and people. And I think that it’s important to talk about.

Melissa: Absolutely. We’ve gotten into a lot of legal implications that an open marriage may have, but I think it’s still a gray area because there’s just, as you said, there was one case on it, right? In North Carolina. And so I’m sure we’re going to see more of it.

Jaime: Right. This is just three lawyers’ opinions based on things we’ve seen and applying the current law, to these situations that are emerging. But yeah, it’s not like you’re going to go do some legal research and find a case that tells you exactly how the alimony statute is applied in the case of an open marriage. That’s right.

Melissa: Discretion of the court.

Grace: Yeah. Well, invite us back to review that when that case law comes out, okay?

Jaime: Absolutely. Well, thank you, Melissa and Grace for joining us, and thank you for listening. If you liked this episode, be sure to follow the show wherever you get your podcasts so you don’t miss the next one. While this information is intended to provide you with general information to navigate divorce without destruction, this podcast is not legal advice. This information is specific to the law in North Carolina. If you have any questions before taking action, consult an attorney who is licensed in your state. If you are in need of assistance in North Carolina, contact us at Gailor Hunt by visiting I’m Jaime Davis and I’ll talk with you next time on A Year in a Day.

gailor hunt attorney
A Year and a Day: Divorce Without Destruction' is a law podcast produced by Gailor Hunt Davis Taylor & Gibbs, PLLC partner Jaime Davis. You can learn more about Jaime's experience and expertise on her bio page. If you have a question about the podcast, you can email Jaime at Please note, the purpose of this podcast is not to give legal advice. This podcast is for general, informational purposes only and should not be used as legal advice. The information discussed in this podcast is specific to the laws in North Carolina. Before you take any legal action you should consult with a lawyer who is licensed in your state.
melissa essick podcast guest
Melissa graduated law school in 2004 and has worked almost exclusively in the area of family law throughout her career. Prior to joining Gailor Hunt, Melissa worked for the Rosen Law Firm handling only issues related to family law, including equitable distribution, post separation support, alimony, custody, child support, mediation, litigation, separation agreements and divorce. Melissa is a Board-Certified Specialist in Family Law. She also is professionally trained as a mediator in all family law matters and certified as a Family Financial Mediator by the North Carolina Dispute Resolution Commission.
Grace DPI
Grace Massarelli grew up in Raleigh, North Carolina where she went to Broughton High School before attending college at the University of North Carolina at Wilmington (UNCW). She graduated from UNCW in 2018 with a BS in Business Administration and a concentration in Economics. Following College, Grace attended the Norman Adrian Wiggins School of Law at Campbell University in downtown Raleigh where she participated as an Honor Court Justice, member of the Teen Court, Re-entry Clinic, and the Student Ambassador Program.

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