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As marriage laws continue to change and the constitutional right to marry evolves, one may wonder where polygamy falls on the spectrum. Legal scholars have long been intrigued as to whether or not polygamy is included under the constitutional right to marry. In a recent article, Michael Higdon  from the University of Tennessee College of Law comments on a family law article from the Duke Law Journal (Polygamous Marriage, Monogamous Divorce, 67 Duke L.J. 79 (2017).

The article looks at what could happen to the state if polygamy becomes law, by examining marriage under the lens of economic game theory. Specifically, the article focuses on sequential bigamists instead of the typical focus of practicing polygamists. Sequential bigamists do not set out to have more than one spouse at a time, but nonetheless marry more than one person in their lifetime. The article points out that the state has an economic interest to limit marriage to two people. If polygamy became the law, then the state could not prohibit bigamy.

If that were to occur, separating couples would lose the incentives to formally divorce and many would choose the simpler option of mutual desertion, simply because there would be no threat of criminal charges for bigamy. This could lead to a serial bigamist marrying multiple times without ever divorcing, which would ultimately compromise the state’s interest of protecting its people from financial damages. The article notes that those living in poverty would be the ones most affected if there were to be a legal shift in the formality of divorces. Divorce allows the state an opportunity to see that those who are leaving marriages are not doing so at their financial peril.

In the state of Florida, bigamy is considered a third-degree felony, punishable by imprisonment not exceeding five years and/or fines not exceeding $5,000.

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John Schutz

John Schutz

Partner at John F. Schutz, P.L.

Representing clients exclusively in family law cases for the past 24 years, Mr. Schutz is widely regarded as a marital and family law expert. He is Board Certified in marital and family law by The Florida Bar. As a Fellow of the American Academy of Matrimonial Lawyers (AAML), Mr. Schutz is committed to elevating the standards and improving the practice of family law.

John Schutz

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