Dating as soon as you’re physically separated from your spouse may be damaging emotionally, but if you are responsible in your actions, it does not necessarily have to affect your divorce. New York and three other states still require grounds to divorce your spouse. In New York, only a signed and notarized “separation agreement” gives you the legal right to live separate and apart from your spouse. Therefore, dating as soon as you physically separate can give your spouse grounds for divorce. In New York, adultery is still a crime under the penal code, although I can’t remember anyone going to jail for adultery in the last 20 years.
However, even if your spouse has grounds for divorce against you, this does not entitle him/her to a better financial deal. Grounds can affect your financial settlement if and only if the grounds are egregious (e.g., serious domestic violence). Custody of children is not typically affected by dating as soon as you separate either, as long as you are a responsible and fit parent who uses appropriate discretion regarding the children. Common sense dictates that you won’t have your children calling your date “mommy” or “daddy,” for instance.
Tactically, if emotions are running high, you may not want to flagrantly date at all during sensitive negotiations or periods of volatile litigation during your divorce. The old adage rings true here: it’s not so much what you’re doing, but rather how you’re doing it that will make the difference.
Sherri Donovan practices family law in New York City with Sherri Donovan & Associates. She has also authored articles for Newsday, The Village Voice, Cosmopolitan, and Crain’s.