CLIENT INFORMATION LETTER #46
DATING DURING DIVORCE
|The purpose of this pamphlet is to assist you in answering questions
that you may have regarding dating during divorce and the law in North Carolina.
It is, of course, impossible to answer all of your questions in a short brochure
such as this, so we want to encourage you to ask other questions of your
lawyer at the appropriate time.
||After I separate from my spouse, am I
free to date other people?
||Yes and no. You are free to associate with whomever you choose. However,
until a final decree of divorce is entered, you are still married. Sexual
relations with anyone other than your spouse is still a crime in North Carolina.
Adultery is a misdemeanor, but since the district attorney usually has more
pressing matters to handle, criminal prosecution is not your primary concern.
Your chief concerns should be how a new relationship will affect:
custody or visitation with your children
your children and your relationship with them
whether you pay or receive spousal support
the amount of spousal and/or child support that you receive or pay
your ability to effectively negotiate a property settlement with your spouse
||But adultery has nothing to do with custody, right?
||Not so fast. There are several reasons why adultery is dangerous in custody
First, while the law may say that adultery per se doesn't matter, the judge
is the decision-maker in your case. The judge has a great deal of discretion
in custody cases and in awarding or restricting visitation rights. Some judges
might not be bothered or offended by adultery; others would be loathe to
grant custody or normal visitation rights to a parent carrying on an adulterous
Second, while a divorce might end the marriage, it won't end the relationship
with the other parent over the minor children. The parents will have to deal
with each other on a frequent basis over a period of years, and post-divorce
cooperation clearly is in every client's best interest. It is hard to imagine
how having an affair before the divorce is complete can have a positive effect
on the spouse's feelings for the adulterer, but the possibility that it will
poison any spirit of cooperation is readily apparent. The need for future
negotiation is inevitable, and negotiating with a friend is usually easier
than negotiating with an enemy.
Third, child support is important in every child custody or visitation case.
Generally, the North Carolina Child Support Guidelines will determine the
amount of child support paid or received in a given case. The Guideline amount
is presumed to be sufficient to meet the reasonable needs of the child(ren).
Under the Guidelines, the amount of child support is determined by the incomes
of the parents. But, the court may deviate or vary from the Guideline amount
under appropriate circumstances. For example, if one parent is living with
another person and sharing expenses, the needs of the child(ren) for fixed
expenses like housing, electricity, natural gas, water and other utilities
are reduced because of the presence of another person in the residence.
Finally, most new relationships which begin before a divorce is final are
unlikely to succeed. When children have been made a part of that relationship
they experience another loss. Children who suffer repeated losses can become
reluctant to develop closer relationships. Not only is this damaging to the
children, but many judges are very concerned about the impact of introducing
children to a significant other while a divorce is pending.
||What does dating have to do with whether I pay or receive
||Maybe a lot. This subject is covered more fully in our Family Law Information
Letters #14 and #34, but in general, you should know that the law regarding
spousal support changed effective October 1, 1995. For cases filed prior
to October 1, 1995, the spouse seeking support had to prove that the other
spouse was guilty of some marital fault. Among other things, this fault included
adultery, indignities, and constructive abandonment. Dating or other social
activities with a person to whom you are not married may be relevant to
establishing one or more of the fault grounds necessary for an award of spousal
support by the court. This is true even after you have separated from your
spouse. For cases filed on or after October 1, 1995, marital misconduct is
not essential for a claim for post- separation support or alimony. Marital
misconduct occurring after the date of separation is only relevant to prove
that similar behavior also existed before the date of separation. Marital
misconduct includes "illicit sexual behavior" and indignities. A dependent
spouse who has committed an act of illicit sexual behavior before the date
of separation cannot be awarded alimony. A supporting spouse who has committed
an act of illicit sexual behavior before the date of separation must pay
alimony. When both spouses have committed acts of illicit sexual behavior,
the court will weigh the relative fault of the parties to determine whether
support should be awarded. "Illicit sexual behavior" includes sexual intercourse
and other sexual acts engaged in with someone other than your spouse. Your
relationship with a person of the opposite sex may be considered an indignity
or constructive abandonment of your spouse, even if you have not engaged
in sexual acts.
||What does dating have to do with how much I pay
or receive in spousal support?
||Dating will have little or no impact on how much spousal support you
pay or receive, unless you share a residence or "cohabitate" with someone.
Cohabitation means: "the act of two adults dwelling together continuously
and habitually in a private heterosexual relationship ... or a private homosexual
relationship. Cohabitation is evidenced by the voluntary mutual assumption
of those marital rights, duties, and obligations which are usually manifested
by married people, and which include, but are not necessarily dependent on,
If you share a residence with someone, this living arrangement affects the
amount of your monthly expenses and your need for support from your spouse
or your ability to contribute to the support of your spouse. This is true
whether you are romantically involved with this person or not. If you are
romantically involved with a person with whom you share a residence, a court
may determine that you are cohabiting with that person. Cohabitation by a
spouse receiving support can be a basis for the reduction or termination
of spousal support.
||But if I don't have children and alimony is not an issue, I can
carry on my extramarital relationship while my property
settlement is being negotiated, right?
||Wrong. Extramarital sexual relations before divorce can have an adverse
affect on the other spouse, perhaps leading to unwanted complications in
your settlement negotiations. This risk is especially high if the other spouse
did not know of the "other woman" or the "other man" before agreeing to a
negotiated settlement, but it can arise even if there was full knowledge
beforehand. Infidelity typically causes hurt, embarrassment and anger, especially
when the adultery is public knowledge. A relationship while the divorce is
pending can create these feelings, and the risk is that the spouse will seek
vindication or revenge. This motive may manifest itself in serious problems
when your lawyer tries to bargain for a "fair" division of property or to
avoid an excessive settlement demand from the injured spouse. Steer clear
of adulterous conduct if you want your lawyer to be able to deal with opposing
counsel based on facts and finances, rather than hurt feelings.
||I've heard about heart-balm lawsuits against
"the other woman" or "the other man." Can
dating after separation give cause to that kind of lawsuit?
||Heart-balm lawsuits against "the other man/woman," mean
that your spouse files an alienation of affection claim and a claim for
criminal conversation. Early in 2002 the Court of Appeals ruled
that a claim of alienation of affection pertains to a dating
relationship during the marriage. However, a criminal
conversation claim can be maintained and successfully litigated when
sexual acts occur before or after the date of separation.
Heart-balm lawsuits are complicated and, often, very expensive if taken
to trial. Therefore, if you engage in sexual conduct with the
person you're dating you could be exposing them to a criminal
[rev. October 2002]
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