Kramer vs. Kramer vs. Kramer

How does polygamous divorce work?

"Sister Wives" Robyn Brown and her kids get ready to open Christmas presents.
Robyn Brown and her kids get ready to open Christmas presents on Sister Wives

Photograph courtesy of TLC/discovery communications.

The polygamous stars of the reality television series Sister Wives headed to court on Wednesday to challenge Utah’s ban on plural marriage. Kody Brown is legally married to his first wife, Meri, but his three other relationships are spiritual marriages only. What happens if one of the spiritual wives wants out? Do plural wives have legal rights?

Not really. State laws do not provide for polygamous divorce, and, because most American polygamists live in insular religious communities, few cases addressing this issue have reached the courts. Judges have a few options. They can treat separating polygamists as unmarried cohabitants rather than spouses. (Common law marriage wouldn’t be an option, because it’s prohibited when one or more partner is already married.) That rules out alimony, but palimony—a division of the assets that a couple shared during their nonmarriage—might be available. It’s tricky to formulate a fair distribution in such cases, though, because the wives who remain in the marriage also have claims to the property. Alternatively, the judge could refuse to grant palimony altogether—in effect, treating the couple as less than cohabitants—to avoid legitimizing the illegal polygamous relationship.

Child support is another challenging issue. Many states calculate child support using simple tables based on the parents’ income and how many other children they support. Polygamous men, however, frequently have dozens of children by several different women—far more than the charts can handle. In such cases, the judge typically errs on the side of the divorcing, custodial mother, refusing to give the polygamist father full credit for his enormous brood.

Polygamous divorce was a somewhat simpler affair among 19th-century Mormons. Church leaders released women from their marriages regularly, and sometimes even granted them the family cow or a sum of money to help them in their new lives. Divorce wasn’t strongly stigmatized in the culture. Ex-wives remarried, often into other polygamous families. In fact, Utah divorce laws were so lax in the early 1870s that people traveled from faraway states just to dissolve their marriages.

Legalizing plural marriage would require some creative changes to state divorce laws. Some U.S. legal scholars have proposed treating polygamous marriages like business partnerships. The parties would jointly own all property during the marriage, new partners would have to win the consent of the existing spouses, and anyone could withdraw unilaterally at any time, taking along his or her fair share of the assets. While this is a tidy solution to the problem, it’s not entirely consistent with the male-dominated polygamy practiced among fundamentalist Mormons in Arizona, Texas, and Utah. Some women who have escaped polygamous relationships claim that their husbands brought in additional wives against their wishes, and had absolute control over all property.

The United States isn’t the only country grappling with these problems. Courts in Tanzania, where polygamy is legal, have struggled to fairly distribute property between divorcing couples. In 1992, for example, a woman won 40 percent of the marital property when she left her polygamous husband. His remaining wife lacked legal standing to assert her rights and never had an opportunity to stake a claim to the joint assets.

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Explainer thanks Adrienne Davis of Washington University in St. Louis, Kathryn Daynes of Brigham Young University, author of More Wives Than One: Transformation of the Mormon Marriage System, 1840-1910, and Rodney R. Parker of Snow, Christensen, and Martineau.

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