Archive for July, 2016

Dating While Divorcing

Wednesday, July 20th, 2016

Many divorcing people – particular those who are also parents — wonder whether they can or should date new people while the divorce is pending.

Legally, “dating,” means one-on-one social contact with another person. There is no distinction between platonic contacts and ones that are romantic or sexual, although from a practical standpoint, the romantic/sexual relationships are the ones that draw scrutiny and cause complications. Dating has the potential to increase both the cost and the stress of the divorce trial. Put simply, even if separated, married people are not supposed to date. Judges rarely punish someone who begins dating – sexually or otherwise – once they have physically separated from their spouse.

The smart money – the lawyers who handle divorce actions – say dating during a divorce should be avoided because the benefits rarely justify the liabilities on someone personally or on his or her legal position.

When someone ends a marriage, for many months thereafter, he or she goes through tremendous emotional, mental and psychological upheaval. Divorce is one of life’s most stressful and painful experiences. Regardless of whether someone is the petitioner or the respondent – the person who wants to end the action or the person who replies — the shocks and aftershocks can devastate a person’s sense of well-being. This is true even the person initiates a necessary divorce to end a bad marriage. A person’s world view and perspective on life and human relationships may change every few weeks. This is no time to make major life decisions, and no time to begin a new long-term relationship. Rebound relationships during this time almost always wind up in a dead end. There is no reason to get into another situation that promises disappointment and despair.

Dating during the divorce can become a minefield when the angry wife or husband – who is still the legal spouse – blows up. A case that might otherwise have been settled easily, amicably and inexpensively can transform into a difficult, acrimonious and very expensive battle when a spouse starts dating. Yes, he or she may have the right to date, but he or she also must accept the significant consequences of that decision.

The presence of someone new, particularly when paraded in front of the spouse and/or children, can enrage the soon-to-be former partner, and also create the suspicion that the relationship began as an affair before the separation. The innocent new friend can be deposed, that is, asked questions under oath and recorded by a stenographer and subpoenaed to testify to determine exactly when the relationship began, whether it is sexual, whether any marital property has been transferred to the new friend, such as by gift, how much money was spent on dating this person, and whether the spouse has said anything that could be used against him or her at trial. Even if everything is on the up-and-up, the result is a lot of unnecessary aggravation and cost.

Dating a new person may cause the lawful spouse to become irrational and filled with a desire for revenge. Dating becomes evidence the new friend is the cause of the divorce even if it is not true and even if the relationship did not begin until after the spouses separated. Fair or unfair, anger makes the case much more difficult to settle. An angry spouse may openly or subtly work to alienate the children, relatives and friends.

Dating during a divorce can alienate children who feel abandoned and who sympathize with the other parent. Young children tend not to accept a new friend even though they might have willingly embraced that person later, after the divorce.

The Legal Impact

Dating during divorce can have an legal impact on the terms and conditions of the marital settlement because the spouses and children can become inflamed and alienated, which can influence judges who often make decisions influenced, however subtly, by the received impressions that the parties make.

Custody and visitation. A spouse may become less likely to settle custody and visitation issues on a reasonable and rational basis. Children may be less likely to want to be the custody of the dating parent and will be less likely to want to spend time with him or her. Frequently, children refuse to spend time with a person if his or her friend is going to be there for visitation. The parent-child relationship can breakdown when children become so alienated.

Judges making custody and parenting time determinations are not impressed with a person who dates during a divorce because dating shows a callousness and a lack of empathy. Dating can be considered poor role modeling for children. Dating during the divorce can tip the scale in favor of the other parent in a custody fight and result in less parenting time than otherwise would have been awarded. Cohabitation during a divorce often is a disastrous action for all of the reasons just mentioned.

Child support and spousal support. Dating does not normally have an effect on an award of child or spousal support; however, cohabitation almost certainly has an adversely impact on support.

The decision to live with someone while a spousal support case is pending could cost a great deal over the duration of the award. That can work both ways. 
The person likely to receive a spousal support award, living with a friend and sharing expenses may suggest to the court that he or she does not need as much spousal support.

In the area of child support awards, when a person lives with someone else and shares expenses, the court can use that fact (and often does) as a basis to set the child support obligation higher (when the obligor is living with someone) or lower (when the obligee is living with someone). The change is called a “deviation” from the presumed level of support according to the state guidelines. The court does not actually add into the support calculation the income of the parent and the live-in friend. The court considers that an obligor with a live-in friend has more money available to pay support and an obligee with a live-in friend does not need as much support.

When children are involved, judges are not necessarily impressed with someone who begins dating shortly after the parties separated. Judges try to be fair, but a judge’s gut reaction towards you could possibly sway him or her in making his final decision about the level or duration of support or about property division issues.

Property Division. During the course of a divorce, the judge is required to make many decisions about many different topics. The slightest nuances can influence the judge’s decision. A judge may never explain his decision, but it is in a party’s best interest to do everything possible to make sure the judge looks favorably on a person, and dating during a divorce harms a party’s position with the judge.

Cohabitation can be a factor in the property division. Living with someone and sharing expenses places someone in a better financial position than a person living along and paying all expenses. A judge may conclude that, as a result of improved financial circumstances, certain property division issues should be resolved in favor of the other spouse. A judge might conclude that a party can afford to pay more money in a property division judgment because of improved financial circumstances. Or a judge might conclude the other spouse should pay less money as property division because the live-in partner improves circumstances.

A person should not even consider dating until he or she has physically separated, even both spouses agree that the marriage is over because, depending on the laws of the jurisdiction, dating can be cited as a reason the marriage failed and it can lead a judge to award more of the marital assets to your spouse. Once separated, party should date “with the utmost propriety, particularly around … children.” Needless to say, care should be taken to avoid becoming pregnant or impregnating someone before the divorce is final. A pregnancy will prolong the case until the baby is born so that the court can verify paternity and determine custody and support requirements.