When The Going Gets Tough,
The Tough Get Bowen

Can I date during my divorce?

On Behalf of | Jul 13, 2021 | Family Law

It depends, is the simplest answer to this question.

To truly answer the above question, you have to ask two questions first:

  1. Does having sex with someone other than your spouse even after separation but prior to the divorce being granted constitute adultery?
  2. Is adultery a fault ground of divorce that allows the Court to consider awarding a disproportionate share of the community property estate to one spouse?

Keeping in mind that the Court can only award a disproportionate share of the community property if there is community property to award.  So, if there’s essentially no community property, then there is no “practical” reason to even ask for a finding of adultery.  Clients in family law cases are often emotionally driven and sometimes so much so that a hurt/emotional spouse will pursue a finding of adultery even though it will have no functional impact on the case.  These are public documents and they are choosing to air their dirty laundry in a public forum.

Regarding adultery when custody or visitation is at issue, the inquiry as to who gets the children centers around the children.  It is the “Best Interest” of the children that will carry the day.

Is introducing every person you date on Tinder to your children a bad idea? Yes.

Is introducing the new love of your life to kids during the divorce process and demanding that your children call this new person ‘mom’ or ‘dad,’ a bad idea? Yes.

Is being human and wanting some companionship during the separation outside of the time you spend with your kids, going to torpedo your family law case? No, not categorically.

Of course, being a registered sex offender or dating one is probably going to hurt your custody case.  And similarly, dating a new person where your preferred couple’s activity is consuming a smorgasbord of narcotics or spending an evening together casually consuming a liter or more of hard liquor is going to be detrimental to your family law case.  Substance issues alone make cases where visitation is at issue extremely difficult.

Keep in mind that even if you are dating reasonably or responsibly, your spouse can still pursue a waste claim for money that you spend on your dates.  So, hold off on any elaborate jewelry, fine wines, and paying your new squeeze’s rent, unless you can handle your spouse walking away from the marriage with more property at the time of divorce as an offset for those expenditures.  And even if you are keeping the dates and gifts reasonable, there is still an offset claim.  Just because you went on a date to IHop instead of Perry’s Steakhouse, does not mean there is not still a waste claim and offset for the amount spent.

Marriages end for lots of reason and divorce is an emotional process and sometimes a very long legal process.

On occasion, for their own sanity, do some people going through a divorce need to go out on a date?       Yes.

Would I recommend it?  No.

However, can a person date during the divorce process without catastrophic consequences?  Yes, if he or she exercises good judgment.

As a final note, please remember that the person you are having an affair with or did have an affair with can be subpoenaed to testify in Court or deposed by the other side.  Also, both of you can be asked a whole array of unpleasant and invasive questions.  So don’t do it!  Your married until your divorced and it will only complicate the case if you start dating before your divorce is final.  So, again, DON’T DO IT