Is it OK to Date During Divorce Proceedings?

Clients oftentimes want to know if it is okay for him or her to date while divorce proceedings are pending.  Under New Hampshire law, if one spouse has an affair (defined as a sexual relationship with a third party of the opposite sex) and that affair is found to have caused the breakdown of the marriage, a Court can consider this “marital fault” (adultery) as a factor supporting an enhanced property settlement, or enhanced alimony award in favor of the spouse who is not guilty of any marital fault.  If one spouse is engaged in a non-sexual but romantic relationship, more along the lines of an “emotional affair” and this conduct is found to have caused the breakdown of the marriage, this too can be considered “marital fault” (conduct to endanger health and reason) and may have the same impact as an affair.  Adultery while married is still adultery.

Whether the relationship – affair or otherwise – occurs during the marriage before a divorce action is filed, or after a divorce action is filed, it can still impact the property settlement or alimony award.  This is surprising to many, and seems somewhat counterintuitive, i.e. “I am already separated – how can this relationship be a cause of the breakdown of the marriage?”  However, our case law provides that post-separation conduct can be taken into consideration.  In addition, if one spouse does have an affair before the divorce is filed, and the other spouse later begins an affair after the separation but before divorce proceedings are concluded, spouse #2 may be barred from seeking a divorce based upon marital fault if he or she is found to have engaged in marital fault.

Even if a spouse is not seeking a fault based divorce, a new relationship can impact the progress of settlement and oftentimes serves as a tremendous distraction in the process.   The spouse who feels betrayed or quickly replaced may be less likely to want to engage in settlement discussions.  He or she may be motivated to “seek revenge” or otherwise not want to be part of an out of court resolution.  The spouse’s boyfriend or girlfriend (and the details of the relationship) may be brought in to the case on issues of parenting or dissipation of assets, thereby bypassing the evidentiary hurdles of a fault based divorce, but nonetheless introducing the other relationship into the case.

Another issue to consider is that living with a paramour during the divorce process may impact the amount of alimony that is awarded if the living arrangement meets New Hampshire standards of “cohabitation.”

There are emotional reasons why you should or should not date during divorce proceedings.  However, from a legal standpoint, if you are having an affair or want to date, it is best to not only separate and file for divorce but actually get divorced before you engage in a new relationship in order to avoid having this relationship become part of the divorce case.

About the Author: Judith A. Fairclough

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