Dating While Separated
Tennessee divorce has consequences. Dating while separated has consequences, too, almost all of which are foreseeable and damaging to the dating spouse’s case.
First, dating while separated may be considered adultery or inappropriate marital conduct under Tennessee divorce law (discussed below). Most experienced Tennessee divorce attorneys have witnessed how a client’s dating during the period of separation has thrown a monkey wrench into the divorce proceedings.
Second, dating while separated can have lasting repercussions, affecting the former spouses’ relationship long after the divorce decree is entered. Strained relations between former spouses are particularly problematic when they have young children to co-parent under a permanent parenting plan.
The potential for negative consequences is not limited to a former spouse’s hurt, embarrassment, or hostility at being publicly humiliated. Dating while separated, before the divorce is over, can put a strain on that parent’s relationship with adult children as well. Like ripples on a pond, the repercussions can affect family relationships for many years to come.
The best advice? Don’t date while the divorce is pending. If you need to know specifically if dating is a problem in your case, then talk to your Memphis, Tennessee, divorce lawyer.
Dating While Separated Is Marital Misconduct in Tennessee Divorce Law
In Tennessee divorce law, having sex with someone who is not your spouse prior to divorce, but after separation, is still adultery. Of course, dating does not necessarily lead to sexual relations, but it certainly can and often does. And dating, even if sex is not a part of it, can still be considered marital misconduct even if it does not rise to the level of adultery per se.
People who are separated from their spouses may have a strong desire to be with someone, a genuine need for affection and companionship. They may search for love to help forget the bad times or just to have fun as they adopt a single lifestyle again. Sometimes people aren’t looking to date anyone, but stumble into a casual-turned-passionate relationship despite themselves. Life happens, and that’s okay. Just don’t let it happen until after the divorce is final and, even then, be cognizant of the impact a new relationship will have on the children.
What Is Happening in the Divorce While Spouses Are Separated?
The spouses are living separately and apart, for a year or more in some cases, while Tennessee divorce proceedings are ongoing. Alimony, child custody, parenting time, division of property, none of these issues have been finally resolved. Deciding to date while separated can have a significant impact on negotiations, mediation, and settlement.
When spouses separate, they begin the mental process of shifting out of the marriage. This is important and a necessary step in moving on with life. Each spouse must learn to live independently of the other. But being separated is not the same as being single. Separated is still married, but not living with one’s spouse. Until the marriage is dissolved, dating represents infidelity and that is not a good thing in Tennessee divorce.
A spouse who dates while separated, even secretively, will complicate the divorce, putting alimony, child custody, parenting time, even the division of property at risk. Dating while separated is marital misconduct, which the judge will consider as a factor in the case.
Additionally, when one spouse is dating or carrying on an extra-marital affair during the period of separation, it is not a stretch for the court to assume that the same conduct was going on before the separation. It looks bad. The innocent spouse, through her divorce attorney, may allege that the dating spouse was at fault for the breakdown of the marriage. Proof of current misconduct can be used to establish past behavior, even if it did not happen that way. Be cognizant of appearances. Do not date or have an extramarital affair while the divorce is ongoing. Doing so can significantly influence the judge and the outcome of the case.
Impact of Dating While Separated on Tennessee Alimony
Marital misconduct is a consideration for the court in awarding Tennessee alimony. The judge considers many factors in determining alimony, one of which is the spouses’ respective marital fault, if any. Dating or having an illicit affair while separated from a spouse is marital misconduct. Furthermore, if the spouse is cohabiting with a paramour, then the judge may consider the lover’s financial contribution to the household as a reason why the spouse needs less alimony for living expenses.
Impact of Dating While Separated on Child Support Obligations
Living with someone else during the period of separation means the judge could consider the paramour’s income along with the spouse’s when calculating Tennessee child support. The cohabiting parent can be ordered to pay more to support the children, whether he or she is the Alternative Residential Parent (ARP) or Primary Residential Parent (PRP).
Impact of Dating While Separated on Child Custody and Parenting Time
With Tennessee child custody, a parent who seeks legal decision-making is under the court’s scrutiny. The judge needs to place the child and must determine what is in the child’s best interests. Not only does dating or carrying on an extramarital relationship exhibit a lack of parental decision-making ability, it can create an environment that is detrimental to the child.
Infidelity can impact the parent’s chances of being appointed PRP, perhaps even more so for fathers seeking custody. A forensic child custody evaluator appointed by the court will inquire into any extra-marital relationships and report back to the court. The evaluator typically provides recommendations to the judge regarding placement of the child with one parent or the other. The evaluator might recommend decision-making for the non-dating parent along with limited or supervised parenting time for the dating parent, all in the best psychological interests of the child. Be careful. Talk to your lawyer about any extramarital relationships.
Impact of Dating While Separated on Property Division
Dating while separated is also likely to give rise to allegations of dissipating marital assets on a paramour. Using marital money to pay for the philandering spouse’s fancy dinners, motel rooms, room service, taxis, and so on, can also violate the automatic statutory injunction. The injunction goes into effect when the divorce is filed. When spending anything but separate funds, dating can be a waste of marital assets and cause for the judge to hold the spouse in contempt of court for violating the injunction. Furthermore, waste can result in an unequal property division with the spouse who dissipated marital resources getting less in the divorce.
Why Does It Matter If Separated Spouses Date?
Dating while separated matters because, to obtain a divorce in Tennessee, the spouse who files the complaint must allege grounds for the court to dissolve the marriage. There are 15 grounds for divorce under Tennessee law, two of which are inappropriate marital conduct (which includes degrading treatment, like flaunting one’s dating) and adultery (sexual intercourse with someone other than one’s spouse).
If the divorce complaint alleges adultery as grounds for divorce, then the complainant must prove personal chastity. As a legal strategy, being able to prove chastity falls apart when the complainant is dating, too. People who live in glass houses…
Affirmative Defenses To Adultery and Inappropriate Marital Conduct
If the dating becomes known or turns into a sexual relationship, consult an attorney. An affirmative defense may be available. An affirmative defense is a legal justification or excuse for why the spouse dated or had an illicit affair in the face of a complaint alleging adultery or inappropriate marital conduct as grounds for divorce.
With adultery, the spouse who had an extramarital affair during the period of separation can offer the affirmative defense of:
- Recrimination (“He did it first”);
- Condonation (“He forgave me” and “We have an open marriage”); or
- Connivance (“He told me to have sex with Frank and get the money”).
With inappropriate marital conduct, Tennessee recognizes insanity and justifiable cause as the only affirmative defenses. With insanity, the spouse will have to prove that she did not have the mental capacity to comprehend or control her actions. With justifiable cause there must be a reason, such as provocation, that reasonably caused the spouse’s action. Realistically, few spouses will successfully avail themselves of these defenses.
Evidence of Dating at Trial
Social media evidence with a photograph of the date-in-progress may be sufficient to carry the burden of proving adultery or inappropriate marital conduct. For example, a friend, the couple’s child, a co-worker, or a neighbor observes the husband out on a date with someone, snaps the image with an iPhone, posts a comment with the picture on social media, and the report gets back to his wife (and her divorce attorney).
In Tennessee, the innocent spouse could provide direct evidence of her husband having sexual relations with a third party (photographs of the lovers engaging in sex, for instance). Direct evidence that a spouse had an adulterous affair is difficult to obtain, although not impossible. But direct evidence is not required to prove adultery in Tennessee. Instead, the innocent spouse can offer circumstantial evidence sufficient to carry the burden of proof by a preponderance of the evidence. Examples of circumstantial evidence include motel charges to a Visa card, witness testimony from someone who saw the couple together at a bar, photographs of the spouse entering or leaving the third party’s apartment, and so on.
If adultery cannot be proved, then the innocent spouse may use evidence of dating (sans proof of actual sex) to support an allegation that the dating affair was inappropriate marital conduct. Make no mistake, an emotional relationship with no overt sexual overtones may be still be inappropriate marital conduct. Delay dating until after the divorce decree is in hand.
Is Dating While Separated Really Worth It?
Is dating while separated really worth the additional stress, hostility, defensive posturing, and legal fees for damage control? Dating while separated often means:
- The paramour will be drawn into the divorce case, especially if there are children;
- Discovery into marital misconduct is likely to include depositions and restraining orders to keep the paramour away from the children; and
- A divorce that was moving through the court system with minimal disruption is now a battle in the trenches over child custody, property, and alimony.
Any perceived benefits to dating while separated, when compared with the actual detriments, make dating a poor choice during Tennessee divorce.