Sex and Dating During Divorce

"Is it okay if I go out on a date?" asked my client, "John". He had filed for divorce and taken his own apartment. "After fighting with my wife for two years, "I'd like be to be with someone who is glad to have me around."

I get this question all the time as a divorce attorney. And, my simple answer is always the same: "Not until your divorce is final." But, life is rarely simple. "John" was lonely and stressed out. Meeting someone new, feeling desirable again, and having fun struck him as a terrific idea. So, despite my cautions, and like many clients, "John" decided it "couldn't hurt" to accept a friend's offer to fix him up. Anticipating this, I gave "John" the do's and don'ts of dating before you are divorced.

Unfortunately, there is more that you shouldn't do than should, but first let's clarify what is meant by "dating". Legally, "dating" means one-on-one social contact with another person, typically the opposite sex. 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.

The reason divorce lawyers counsel against dating while the divorce is pending, even if separated, is that it has the potential to increase both the cost and the stress of the divorce trial. You are not supposed to date if you are married.  Judges, however, rarely punish someone who begins dating—sexually or otherwise—once they have physically separated from their spouse.

Even so, the presence of someone new, particularly when paraded in front of the spouse and/or children, can enrage the soon to be ex-husband or wife, and also create the suspicion that the relationship began as an "affair" before the separation. The innocent new friend can be deposed by the other side's lawyer (that is, asked questions under oath) and subpoenaed to testify at trial. The purpose is to determine exactly when the relationship began, is it sexual, did any marital property get transferred, such as by gift, how much money was spent on dating this person, and did the spouse say 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.

But, for those unwilling to wait, here are a few guidelines for dating while divorcing:

The Don'ts

• Don't even consider dating until you have physically separated even if you/your spouse agree that the marriage is over. It could be cited as a reason the marriage failed and lead a judge to award more of the marital assets to your spouse.
• Once separated, date with the utmost propriety, particularly around your children. Don't do anything in front of them that you wouldn't be comfortable describing to a judge. Avoid introducing them to your new sweetheart. It will likely exacerbate their pain and could compromise your future custody rights.
• Don't get pregnant or impregnate someone before the divorce is final. It will prolong your case until the baby's born so the court can verify who is the father, and determine custody and support requirements.

The Do's

• Do socialize in groups, being careful not to pair off with someone.
• It's okay to attend events individually and network socially. If you meet someone you like, be upfront about your situation. Exchange contact information, but avoid one-on-one contact until you are at least separated.
• Find a support group for people in the midst of a divorce. Typically, these will be offered at churches or other non-profit organizations.