Push the clients hard to find out what they really want, with specifics relating to money. If they can’t be more specific than “make them all equal” then they don’t need a financial advisor, they need a spiritual figure to perform a (not legally binding) ceremony. And, as noted above, there are some aspects of legal marriage that they can’t re-create with an agreement amongst themselves. If they can list specific problems with specific situations that they want a solution for, I’d still push them to think it all through with all the possibilities (what happens if one person wants to leave the polymarriage?). That part is something contract lawyers are used to doing, so might be worth pushing some of that off on an attorney.
It’s a big world, and they’re definitely not the first people wanting to create some legal structures around a polyamorous relationship. They should be scouring the poly-friendly corners of the internet for ideas and solutions. Again, if they don’t have specific issues in mind, that kind of research should be their job, not yours.
Nah, I get paid for this sort of research and advice, so it’s not like I mind. And at least it’s entertaining.
They’re very big on ‘consent’ and ‘ethical decision making’ which I am interpreting as ‘discussing until they all want to puke’ and reaching some sort of consensus. Whatever it is, that discussion is not my problem. My problem is to define the problems for them to discuss and find a lawyer willing to execute the trust - if a trust is the outcome desired.
So far, I think the dollars and cents issues are fairly straightforward. Income, expenditures, retirement savings and so forth are all easy problems with which to deal.
Medical power of attorney issues means they each have to choose one person or design the PoA to allow for majority or unanimous decision-making features, depending on how they want to go.
Child-rearing decisions. Still problematic. No matter how the trust is set up a trust can’t be listed on a birth certificate. So - Canadian court decisions notwithstanding - there’s going to be a legal ‘father’ and ‘mother’ with the other members of the trust being outside that legal status. I could see that causing tension downstream. However, another PoA could assign child-rearing decisions - and who takes over child-rearing following the death of both birth parents - to a third party, couldn’t it?
I believe that it could – I know that you can set something like that up for the guardianship of someone with disabilities who will always need a guardian.
Are they planning on adopting kids or having them biologically within their arrangement? I can’t help but think that they’ll have a very hard time getting any adoption agency to agree to this…
The marriage complicates matters. The child can probably only have 2 legal parents, although the parent-like rights of others might be legally protected, in the way that grandparents sometimes get parent-like rights after a divorce.
I have a friend in a similar situation who is consulting a lawyer who specializes in this branch of law. The details will vary a lot by state. In the state my friend is in, quite a lot of the groundwork was laid by gay couples seeking marriage-like arrangements prior to the legalization of gay marriage. Hmm, I have another friend whose family runs a legal support site for people in non-vanilla sexual partnerships, who might also be able to help (and might do so for free.) PM me if you want more details.
Well, there’s one child from the married couple already. I’m going to assume from ages - thirties? early to mid? I should check - that there’s the possibility of more children down the line. My ex and I had ours at 33 and 37 so it could happen. It could certainly happen if there are more people added to the trust in the future.
Such a trust could be immortal, am I correct in that? Originators die or leave for whatever reason but by adding younger people there’s no reason it would ever have to end.
And I don’t disagree with you about adopting. I think that wonkiness would throw them right into the circular file.
The friend with the legal support site has twins from her womb, her partner’s sperm, and her partner’s other partner’s daughter’s egg. fwiw. That is, Call her Anne. Anne lives with Bill and Cathy, they all consider each other primary partners, although the two women don’t actually sleep together. Cathy has a daughter from a prior relationship. Cathy’s daughter donated eggs, which were fertilized by Bill’s sperm, and grew to term in Anne’s womb. They are out about their household structure to the school, church, neighbors, etc., and run a support group for others.
Yeah, as I said when first confronted with the problem, “This shit is gonna get complicated.”
Nothing that crazy here yet. But I can see a potential for each man to father children with each woman. The ties that bind are going to pull tight here with parents needing to do their best to not favor some and the kids trying to keep straight who’s sibling to who and to what degree. I believe those are overcomeable but it present problems worth considering in advance.
I think this is effectively impossible. Two of your clients are married to each other and they share a child together. No trust is going to allow them to unilaterally change that arrangement. They could choose to divorce so none of the four are married to each other. This will make them legally equal with respect to each other but it may be disadvantageous from other perspectives. For example, the divorced couple can no longer give unlimited gifts to each other without paying gift taxes if they exceed the annual gift amount. So, if one member of the married couple is a high earner that wants to support the former spouse as part of this arrangement, they will start to use their unified gift credit and may eventually owe a bunch of gift taxes that wouldn’t otherwise be owed.
There are many other ways that the law won’t treat a polyamorous group the same as a married couple. A married couple benefits from marital communications privileges and spousal testimony privileges in court. However, the spousal testimonial privilege will only apply between the legally married couple. The marital communications privilege won’t apply if the marital couple hasn’t kept the information confidential between them. So, if the married couple has disclosed the same information to the other two, no one gets the marital communication privilege.
I think a carefully structured trust could give them some semblance of similarity but it wouldn’t grant equality.
This could be tricky and I suspect might vary very strongly from state to state. Fairness could be achieved if the parents relinquish their parental rights and allow someone(s) unattached to your client-foursome to adopt the child. I don’t think this is their objective. Otherwise, the parents could relinquish their parental rights and allow the other two to adopt the child. But, then the child has no legal relationship with his or her biological parents and has a new, stronger legal relationship with his adoptive parents. This doesn’t achieve equality. I don’t know if the trust could create any binding obligations on the non-married pair to care for the child.
I’m not so sure. These people need to think carefully about how to dissolve this relationship. It only takes one person to end a relationship and half of marriages end in divorce. Given that these people are effectively entering marriages with each other, and that any one person choosing to divorce any one other person effectively dissolves the union, I suspect that their chance of divorce at some point approaches 100%. My hunch is that this foursome won’t last more than a few more years before something changes.
When a married couple divorces, they can get a qualified domestic relations order (QDRO) from the family court, which allows them to divide their retirement accounts fairly and without incurring new tax penalties. But, QDROs apply only to one spouse. There is no way they could all share in that tax benefit.
I wonder too.
If all the assets were in a trust, there generally would not be probate under state law. However, a revocable trust like these people would be relying on would still be subject to estate tax. This generally only affects large estates.
Historically, state laws limited trusts under the Rule Against Perpetuities, which (greatly simplifying here) said that trusts couldn’t be structured so they could run forever or even for a very long time. Many states have modified eliminated the Rule Against Perpetuities and so this might be possible now. If your state hasn’t altered the Rule Against Perpetuities to permit it, they could try to set up their trust in whichever state allows it.
I don’t know if employment or contract law in the particular state would permit the persons to enter an irrevocable agreement to give away a lifetime of their earnings. This might implicate the 13th Amendment.
Good god, yes.
Yup. Their trust basically needs to incorporate all the legal structure and wisdom of hundreds of years of family law, modified to suit their particular wishes. That should be cheap and easy to draft, right?
Right. The parents’ estate plan should express a preference that the other two will care for the child if he or she is orphaned but family court isn’t bound by it. They can’t all be truly equal parents. The trust (or some combination of trusts) could provide that the other couple will be trustees of the orphan’s assets, which would give them some semblance of control and equality.
Right. There is nothing the trust can do to unilaterally change this fundamental fact. The rest of your post is also worth reviewing and understanding.
This kind of research should be a lawyer’s job. They should find the right lawyer to guide them.
With regards to children, the best course is to treat all the children as full children of each parent. Adoptive parents can do this, and even if they don’t have legal backing, they can try to do this emotionally. In some states I believe you can name guardians in addition to parents, which can give the other adults some legal rights regarding the children. But I agree that you will want to talk to a lawyer who specializes in this and who is intimately familiar with the relevant laws of the state where they live.
Some states explicitly forbid this sort of thing :mad:
E.g. Virginia:
That’s right after language that explicitly says “one man and one woman”, which obviously no longer applies, but the part I excerpted here might still be in effect.
In any case, such a trust / corporation would need to be very carefully set up to avoid challenge under such a law.
