What are the legal implications of dating during and after divorce?

By: David Wilkinson
: October 29, 2016

Not surprisingly, new relationships are often forged between one spouse and a third party while the spouse is still married to their husband or wife. Even more often, divorced parties seek out and begin new relationships after their divorce has been brought to judgment. Most people believe that there are no legal implications to beginning those relationships, and most often they are right. However, sometimes there may be negative or even positive legal implications stemming from those new relationships.

When spouses begin outside relationships during marriage, the bulk of possible negative legal implications arise.  While 33 states currently provide (and recommend) divorce based on irreconcilable differences, the remainder of the states, and some of the states that also allow no-fault divorce, permit parties to file for divorce based on fault. One of the legal grounds for a fault-based divorce is adultery. The implications that could arise and the legal effect of an adultery claim in a particular divorce case will vary under each state’s law. In some states, criminal implications could arise when a spouse has been found to have committed adultery, although the prosecution of such crimes appears to have gone by the wayside in the past decades. As one example, if a court finds that one spouse has committed adultery and allows a divorce on those grounds, usually the legal implication extends to the issues of spousal support (alimony) and the division of assets and debts wherein the court would allow more or less alimony and assign property differently as if there were no adultery.

The primary legal significance of a person dating before or after marriage, however, arises when children are involved.  When child custody and visitation is an issue during a divorce case, or even during post judgment proceedings, the presence of a new person in the mix can be important both negatively and positively.  In every state, a divorce court is charged with ensuring that the best interest of the children is the focus, and child custody and visitation orders are based on this premise. If a parent brings a new dating relationship to the presence of the children to quickly, it could negatively impact the children because they may believe that the other parent is being replaced. Family Court judges are cognizant of the fact that many people want to move on with their lives, but they balance that right with the children’s best interests.  It is often most appropriate for a parent beginning a new relationship to introduce that person to the children slowly over a period of time.

There can be severely negative impacts for a parent that begins dating a person with a questionable history, including a criminal past. The mere possibility of a person with a criminal history spending time with children is grounds for the court to significantly limit the dating parent’s custody of the children. Conversely, in some cases a state court family law judge may consider the presence of a new person as having a positive impact on the children. For example, if a divorced father begins dating a woman who is a pediatric nurse, the inclination may be for the judge to view that in a positive light due to the possible benefits to the children. However, keep in mind that there are a significant number of cases that unwaveringly conclude that a “two-parent” household cannot be preferred over a one parent household when a judge is determining child custody and visitation orders. These rules and holdings vary state-by-state.