The increasing prevalence of marijuana use and its legalization in multiple states has created a vexing question for some security clearance holders: can they marry a marijuana user when prohibited from using themselves?

Adjudicative Guidelines, Marijuana, and Spouses

Neither the National Adjudicative Guidelines for Security Clearances nor any security training of which I’m aware explicitly addresses this question. However, I’ve seen the issue arise occasionally in security clearance denial and revocation cases, usually with the government claiming that the applicant (the term used to describe first-time applicants and current clearance-holders alike) has demonstrated poor judgment by associating with someone engaged in criminal conduct.

Setting aside the fact that the federal government has all but abandoned enforcement efforts against recreational and medicinal marijuana use, the drug does remain on the federal controlled substances schedule. Even if the applicant isn’t using him/herself, the romantic partner’s use remains a security issue – especially if the parties are living (or will soon be living) together. With views on marijuana evolving, however, these days I’m hearing less of the “associating with a criminal” argument from the government and more of concerns that the applicant will succumb to temptation and participate in the drug use.

Marijuana Prenuptial Agreements for Some Clearance Holders

Recently, some security clearance holders have taken a rather inventive approach to rebutting these arguments: incorporating into pre-nuptial agreements provisions on how and when a spouse-to-be can use marijuana. I’ve seen a few such agreements in the past couple years. The best of them prohibited the non-applicant spouse from: using or storing marijuana in the marital home; using it anywhere in the applicant’s presence; asking the applicant to receive deliveries of marijuana or purchase it for the non-applicant spouse; and using marital funds to purchase marijuana or marijuana paraphernalia.

Practically-speaking, this means that the non-applicant spouse keeps a separate-funds bank account for marijuana purchases and only uses/stores the marijuana at a friend’s home or some similar off-site location. It’s no-doubt all a big hassle for the non-applicant spouse, but that’s kind of the idea. The lack of ready access for the applicant is supposed to help ameliorate the government’s concerns – at least in theory.

Is it worth it?

The “at least in theory” part is the operative qualifier that anyone thinking about a marijuana pre-nup needs to understand. The agreements I’ve reviewed have been in the context of clearance holders seeking to avoid problems before they occur. That means that the “marijuana pre-nup” hasn’t yet been tested in any security clearance denial or revocation case of which I’m aware, nor has the government blessed the approach as an acceptable workaround. It means that even a legally-binding contract between spouses isn’t a surefire way to avoid problems, and that anyone thinking of doing this is taking a risk.

With all that being said, a marijuana pre-nup is probably better than nothing unless the applicant is willing to end the relationship, the non-applicant spouse is willing to stop using marijuana, or the applicant is willing to seek uncleared employment.

 

This article is intended as general information only and should not be construed as legal advice. Although the information is believed to be accurate as of the publication date, no guarantee or warranty is offered or implied.  Laws and government policies are subject to change, and the information provided herein may not provide a complete or current analysis of the topic or other pertinent considerations. Consult an attorney regarding your specific situation. 

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Attorney Sean M. Bigley represents clients worldwide in security clearance denials, revocations, and the security clearance application process. He is a former investigator for the Defense Counterintelligence and Security Agency (then-U.S. Office of Personnel Management). For more information, please visit www.bigleylaw.com. Readers will also find a low-cost, self-help option for obtaining copies of their security clearance background investigations and DISS/Scattered Castles records at www.bigleylaw.com/security-clearance-investigation-records.