DATING BEFORE DIVORCE
Can I date before my divorce is final?
One of the most frequent questions clients ask during consultation is whether or not they can begin seeing another person once they have started the divorce process. Unfortunately, the answer is not clear-cut and can depend upon the client’s circumstances or issues in the case. Therefore, it is necessary for the client to understand the risks involved in dating before divorce and make a decision balancing those risks on the family court litigation.
Grounds for Divorce
First, adultery can be grounds for divorce. If a party begins dating once the divorce process has begun, that party opens themselves up to the possibility of facing an adultery claim. Even if a party is not committing actual adultery and just dating, the party will have to evaluate whether it is worth the potentially expensive cost to defend an adultery action.
Supported Spouse Adultery – Bar to Alimony
Second, adultery can be an absolute and statutory bar to alimony if the adultery is committed by the supported spouse.
“No alimony may be awarded a spouse who commits adultery before the earliest of these two events: (1) the formal signing of a written property or marital settlement agreement or (2) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties.”
S.C. Code Ann. § 20-3-130(A)
Therefore, a party who does not want to pay alimony has an incentive and will often make an adultery claim if the other party is dating. Again, even if a party is not committing actual adultery and just dating, the party will have to evaluate whether it is worth the cost of defending an adultery action and also whether dating is worth the risk of losing a potential alimony award.
Supporting Spouse Post-Separation Adultery – Court may consider in awarding alimony
Adultery committed by the supporting spouse also results in risks to the supporting spouse with regard to alimony awards. In making an award of alimony or separate maintenance and support, the court must consider the following:
(10) marital misconduct or fault of either or both parties, whether or not used as a basis for a divorce or separate maintenance decree if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage, except that no evidence of personal conduct which may otherwise be relevant and material for the purpose of this subsection may be considered with regard to this subsection if the conduct took place subsequent to the happening of the earliest of (a) the formal signing of a written property or marital settlement agreement or (b) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties.
S.C. Code Ann. § 20-3-130(C)(10)
The court may consider adultery that occurs after separation to award alimony or to increase an alimony award if the adultery affected the economic circumstances of the parties or contributed to the marriage’s breakup.
The third risk of dating occurs if the client has a child or children, and child custody is disputed. In deciding custody, the court considers the following factors:
(1) the temperament and developmental needs of the child;
(2) the capacity and the disposition of the parents to understand and meet the needs of the child;
(3) the preferences of each child;
(4) the wishes of the parents as to custody;
(5) the past and current interaction and relationship of the child with each parent, the child’s siblings, and any other person, including a grandparent, who may significantly affect the best interest of the child;
(6) the actions of each parent to encourage the continuing parent-child relationship between the child and the other parent, as is appropriate, including compliance with court orders;
(7) the manipulation by or coercive behavior of the parents in an effort to involve the child in the parents’ dispute;
(8) any effort by one parent to disparage the other parent in front of the child;
(9) the ability of each parent to be actively involved in the life of the child;
(10) the child’s adjustment to his or her home, school, and community environments;
(11) the stability of the child’s existing and proposed residences;
(12) the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, must not be determinative of custody unless the proposed custodial arrangement is not in the best interest of the child;
(13) the child’s cultural and spiritual background;
(14) whether the child or a sibling of the child has been abused or neglected;
(15) whether one parent has perpetrated domestic violence or child abuse or the effect on the child of the actions of an abuser if any domestic violence has occurred between the parents or between a parent and another individual or between the parent and the child;
(16) whether one parent has relocated more than one hundred miles from the child’s primary residence in the past year, unless the parent relocated for safety reasons; and
(17) other factors as the court considers necessary.
SC Code Ann. § 63-15-240(B)
Having and exposing a paramour to the child or children creates a problem, as an overnight paramour exposure can be a factor in custody. In addition, during pending litigation, when temporary custody and visitation are awarded, the courts will often impose Judge Brown’s Standard Restraining Orders, which states the following:
“All parties are restrained from having the child/children on an overnight basis in the presence of an adult party of the opposite sex (*or the same sex if the party or guest is bi-sexual or homosexual) to whom the parties are not related by blood or marriage, or any lover/paramour. Neither party shall expose the child/children to conditions, which imply a relationship such as a boyfriend or girlfriend, paramour/lover or some type of improper relationship while the party is still married to another person. While the parties are still engaged in marital litigation, the restriction shall be against the mere presence of any alleged paramour or one who under the circumstances may reasonably be construed as a paramour and not merely against overnight visitation.”
Therefore, if you have a child or children and make the decision to date while your divorce is pending, you must be careful about exposing your child or children to the person. A party risks the fact that if they do expose the child or children to a paramour, it may be used against them for future custody and visitation determinations.
Equitable Division of Marital Property
Finally, adultery can be a factor the court considers in the equitable division of martial property. However, post-separation adultery is only a factor in equitable apportionment if it occurs prior to the court issuing a temporary order in the case. S.C. Code Ann. § 20-3-620(B) states as follows:
(B) In making apportionment, the court must give weight in such proportion as it finds appropriate to all of the following factors:
(2) marital misconduct or fault of either or both parties, whether or not used as a basis for a divorce as such, if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage; provided, that no evidence of personal conduct which would otherwise be relevant and material for purposes of this subsection shall be considered with regard to this subsection if such conduct shall have taken place subsequent to the happening of the earliest of:
(a) entry of a pendente lite order in a divorce or separate maintenance action;
(b) formal signing of a written property or marital settlement agreement; or
(c) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties;
Consequently, if a party wishes to date, it may be best to wait until after a temporary order has been entered if significant assets are at stake.
Overall, dating while divorce litigation is pending should be carefully evaluated. A party must be sure to weigh all of the potential risks before deciding what is in their best interest.
If you have questions concerning divorce, child custody, child visitation, alimony, property division or any other family law issues, please give Elliott Frazier Law Firm, LLC, a call today. We represent family law clients in Greenville, Anderson, Spartanburg, and Oconee counties.