Dating During Divorce
James R. Becker, Jr.
February 28, 2019
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One of the questions we don't get asked anywhere near often enough is whether our divorcing clients can date during a divorce. I suspect that is because the answer is shockingly simple - NO! Yes, I did intend to use "shouty caps" and an exclamation point on that answer. It's not that "dating" standing alone is necessarily bad, it is the prospect of marital infidelity (a/k/a adultery) that is necessarily bad. Bad as we see this issue has nothing to do with morality, but has everything to do with your pocketbook. When you are going through a divorce you are still married right up until the time that the judge or chancellor puts his or her signature on the final decree of divorce. This is significant because it means that until that time, if you engage in sexual relations with someone other than your spouse, you are an adulterer (or adultress). Big deal, you think. I'm getting a divorce, you say. That cannot possibly affect me, you hope. Adultery is only relevant as grounds for a divorce and we are already getting divorce, you argue (because you read the statute). Unfortunately for you, you are wrong. Adultery is not just a reason to get divorced, it is also an issue when the court determines the two most important issues in a divorce - alimony and custody. |
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When you are going through a divorce you are still married right up until the time that the judge or chancellor puts his or her signature on the final decree of divorce. This is significant because it means that until that time, if you engage in sexual relations with someone other than your spouse, you are an adulterer (or adultress). Big deal, you think. I'm getting a divorce, you say. That cannot possibly affect me, you hope. Adultery is only relevant as grounds for a divorce and we are already getting divorce, you argue (because you read the statute). Unfortunately for you, you are wrong. Adultery is not just a reason to get divorced, it is also an issue when the court determines alimony and custody.
Adultery in Tennessee is defined as sexual intercourse with someone who is not your spouse. The logical response from many people is that dating is not sex. Of course, that is correct. However, what that ignores is that a court will lump adultery with "inappropriate marital conduct" and consider dating to be an inappropriate relationship. Also, judges were once human and still remember the objective of most dates was not just to enjoy a rousing conversation with a member of the opposite (or same) sex.
When you engage in an inappropriate relationship, the court can take that into consideration in awarding alimony. While the primary factors are need for support and ability to pay, the court can also consider the relative culpability of the parties and an inappropriate relationship definitely factors into that analysis. From that perspective, dating during a divorce could mean the difference between either receiving or having to pay thousands of dollars in support.
A court will also consider inappropriate relationships in awarding custody, but that is probably not the biggest obstacle dating during a divorce creates in this situation. When you are going through a divorce, the other spouse assumes that you will be spending alone with the child. There may also be some feelings of jealousy to see you moving on with another relationship. Imagine the emotional impact that seeing you out on a date (especially with the child), having an apparent good time will have on your spouse. While you are no longer the keeper of your spouse's feelings, you are responsible for not goading the other side to take a position or fight about something that will wind up costing you thousands of more dollars in legal fees. A court may take the inappropriate relationship into consideration in awarding custody, but a fight about this will cost you several thousand dollars in additional legal fees and will add months to the divorce process.
If you don't care about what this is very likely to cost you, go ahead and go out on a date during your divorce. Your pocketbook won't thank you.