Many clients ask this question, and the answer – like most in family law – is that it depends on the facts of your case. Generally, it is best to avoid dating, because even if it is unlikely to have a real impact in the final outcome of your divorce, it is usually a source of drama that adds to the time and expense in resolving your case. Factors that affect the answer include: are you separated from your spouse? for how long? do you have minor children? are you financially separated from your spouse? when did you start seeing the other person?
Courts generally do not like to get involved in "moral" issues between parties unless they impact parenting of the children. People have differing views on when it is appropriate to introduce children to a new significant other, if they should notify the ex-spouse before introducing the children, when that person should sleep in the same house, etc. Post-divorce, unless the parties address this in their divorce judgment, courts may not weigh in unless the new significant other is abusive to the parent or children, has substance abuse issues, is a sex offender, or some other factor that affects the children's well-being.
Pre-divorce most judges will be more critical of exposing children to a new significant other and can issue orders preventing exposure to dating partners. If custody and parenting time are disputed in your case, the judge will be evaluating the mortal fitness of each parent and it will not be helpful if you are seen to prioritize your love life over your children's best interests. It may not matter if you are acting responsibly or not – just that the other parent has made it an issue. Pre- or post-divorce, parents should consider their children's needs and reactions to dating and if needed, consult with a therapist before introducing children (of any age) to a new partner. These issues are better dealt with in a therapeutic setting versus a legal setting.
Whether or not children are involved in the case, dating during a divorce will often involve dissipation of marital funds. If you are using any marital funds (i.e. your income or money in the bank) on a dating partner – dinners, movies, gifts, trips, etc. – you are dissipating marital funds. The general rule is that every dollar you or your spouse earn or have in the bank during the marriage is half yours and half your spouse's. Dissipation allegations in a divorce can involve additional discovery, review of bank records and credit card statements, and/or private investigators. Parties can spend more in proving dissipation than was dissipated! If the records prove the dissipation, the judge is likely to order you to reimburse the amount spent to the marital estate.
Another critical issue related to dating and the financial side of divorce is whether the dating relationship was at fault for the breakdown in the marriage. Though Michigan is a no-fault divorce state – meaning neither side is required to allege or prove fault to get divorced – fault can be a factor in property division and spousal support. Parties often claim fault based on any affair or dating situation; however, for it to truly be a factor, it had to lead to the breakdown in the marriage relationship. So, if your spouse had an affair 10 years ago, but you remained married and tried to make it work, then the affair may not have been the cause of the breakdown that led to the divorce filing. Even if it was the cause for you, it is less likely a judge will give the affair too much weight. Or, if your spouse starts dating someone after you file or separate, the dating is not what led to the breakdown in the marriage. On the other hand, if your spouse had an affair, you discovered it, and filed for divorce soon after, your claim for fault has more relevance.
One nagging issue that cannot be ignored is that technically, adultery is still a felony in Michigan. The statutes provide that adultery is the sexual intercourse of two persons, either of whom is married to a third person. Also, when the crime is committed between a married woman and an unmarried man, the man can also be guilty of adultery. The husband or wife has one year from the date of the offense to request prosecution. Prosecutors have not pursued adultery charges against anyone for years; however, people should beware what they admit to in emails, texts, discovery or pleadings.
Everyone must weigh their own risks and benefits of dating while getting divorced. The bottom line is that your divorce case will be much less complicated if you can avoid it.
© 2022 Varnum LLPNational Law Review, Volume X, Number 289