Dating & Divorce

Your marriage is ending because you aren’t happy. You hope to find happiness elsewhere, and the way to do that may be to date other people to find a new relationship. However, dating before you are divorced may not always be the best decision.

Grounds for Divorce

Most people seek a divorce utilizing the no-fault option, which is available in New York and every other state. However, adultery is still legal grounds for divorce and having sexual relations with another person while you are still legally married is the definition of adultery. If you date and have relations with another partner, you could provide your spouse with the basis for changing the grounds of the divorce to adultery.

In most situations, this is unlikely to happen. However, a vindictive or hurt spouse might stop at nothing to complicate the divorce. Alleging adultery can have an impact on the distribution of assets and debts. If the spouse who commits adultery wastes (essentially uses up or spends) marital assets on the affair (such as by paying for hotel rooms, dinners, travel, gifts, and so on) this could impact the way the assets and debts are divided in the divorce and could also impact the spousal maintenance (also called alimony) award that court determines.

Dating and Child Custody

Child custody and visitation is determined based on what is in the best interests of the child. New York state courts can consider a wide variety of factors. A parent’s dating life is not specifically listed as a factor in the statute. However, it can come into play when considering some of the other factors. The court can consider the conditions in each parent’s home. If you are dating and bringing dates home and introducing your child to them or a new partner is staying in your home, this information can be discussed at trial. If the situation harms your child, it could hurt your chances of winning custody.

Additionally, if you’re dating and leaving your child at home with a sitter to go out, this also becomes a factor the court can consider. Interactions between your dates or new partners and your child are relevant, particularly if your child is mistreated, abused, or neglected by the new partner.

The court considers drug and alcohol misuse when establishing a parenting plan, so dating that involves heavy drinking or drug use becomes relevant and part of the analysis conducted by the court. It is also important to remember that the court may hear testimony about your children’s wishes when it comes to custody and dating or having new partners may negatively impact your child’s opinion of living with you.

Dating and Child Support

Child support payments are calculated based on both parents’ income. If you live with someone, their income is generally not considered when establishing child support. However, if your new partner financially supports you, your spouse could make the case that that person’s income should be included in the calculation of child support.

Dating and the Hostility Level of Your Divorce

If you decide to date while still legally married, be aware that it may anger or incite your spouse. They may be less likely to agree to reasonable settlements and may intentionally make the divorce difficult and expensive as payback.

Separation and Dating

If you and your spouse have agreed to separate and live separately, you might think it’s ok to date, but you are still legally married and all of the above caveats apply. If you get a legal separation, you can legally date since the court has declared you to be living separately and apart.

Dating Rules & Guidelines

With all of that being said, you may decide that you wish to date before your divorce is final. If so, there are some rules to follow:

  • Try not to become pregnant or impregnate someone else. It will exponentially complicate your divorce as well as your post-divorce finances (since you will likely have a child custody and support situation to deal with).
  • Remember that you cannot legally remarry until your divorce is final. However, it is legal to become engaged while already married.
  • Never intermingle marital assets with a new partner’s assets. Marital assets should be kept separate until the divorce is final.
  • Never go to places your spouse frequents with your dates. You don’t have to hide, but you also don’t want to flaunt it.
  • If possible, discuss dating with your spouse and reach an agreement about it so no one is surprised or hurt.
  • Do not spend marital assets on your partners. If you wish to date, use your own separate funds to pay for the activities. Using marital assets may negatively affect your property distribution.
  • Do not go out on dates during your scheduled time with your children. Instead, have dates on nights where your children are with your spouse. Failing to use your parenting time could lead to the court truncating your scheduled times.
  • Be clear with your dates that you are going through a divorce.
  • Avoid cohabitating with a new partner until the divorce is final because doing so can complicate your custody, child support, and financial distribution award.
  • Avoid changing your social media status to single until you’re actually legally single.
  • Avoid bringing dates around your minor children until you are very sure the relationship is serious.
  • Always make sure that your children are not present for adult activities with your dates.

It can be hard to wait to get started with your new life once you’ve decided your marriage is over, but dating while legally married can be complicated and potentially detrimental to your divorce case. Always discuss your dating life with your attorney so that they are fully informed and can answer any questions you might have.


Naomi Schanfield

Naomi Schanfield concentrates on all aspects of matrimonial and family law, including, prenuptial and postnuptial agreements, divorce, equitable distribution, child custody and visitation, support matters, family offense disputes, and domestic violence.

To connect with Naomi: 212.682.6222 | Online

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