The dangers of dating before divorce (or before a final order of separate maintenance)

People coming out of an unhappy marriage are often eager to begin dating. Yet there are risks in dating before one is divorced.  My preference as the attorney is that my clients don’t date until they are divorced (or at least until they have a final order of separate maintenance): a client who doesn’t date is not going to create any dating-related complications in his or her case. However my clients often want to explore new romantic relationships. Each client needs to determine his or her own balance regarding the risks and rewards of dating during marital dissolution litigation. This blog is intending to help litigants understand these risks.

A whole subset of risk arises when child custody is an issue. S.C. Code § 63-15-240(B) sets forth sixteen specific criteria for the family court to consider when determining child custody. A parent’s immoral behavior is not one of these criteria; however, it can be of some relevance in a custody case. “A parent’s morality, while a proper factor for consideration, is limited in its force to what relevancy it has, either directly or indirectly, to the welfare of the child.” Stroman v. Williams, 291 S.C. 376, 353 S.E.2d 704, 705 (Ct.App. 1987). Case law rarely supports custody decisions based on a parent’s immoral conduct, the last such case being Kisling v. Allison, 343 S.C. 674, 541 S.E.2d 273 (Ct.App. 2001). However paramour exposure prior to divorce, especially overnight paramour exposure, can be a factor in custody. If a parent is going to date prior to a divorce that parent needs to be warned not to expose the child to those he or she dates.

Alimony and property division can also be affected when a spouse dates prior to a final order of separate maintenance. Dating often leads to accusations of adultery, and sometimes dating leads to actual adultery. Post-separation adultery can be a major factor in alimony and a small factor in property division.

For the spouse seeking alimony, adultery can act as an absolute bar. Under S.C. Code § 20-3-130(A), “No alimony may be awarded a spouse who commits adultery before the earliest of these two events: (1) the formal signing of a written property or marital settlement agreement or (2) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties.” Post-separation dating by a supported spouse often leads to an adultery claim being made by the supporting spouse, who wants to be free of the potential alimony claim.  The supported spouse can incur significant fees in defending that claim.

Even for the supporting spouse, dating can pose a danger on alimony. S .C. Code § 20-3-130(C)(10) reads:

In making an award of alimony or separate maintenance and support, the court must consider and give weight in such proportion as it finds appropriate …

(10) marital misconduct or fault of either or both parties, whether or not used as a basis for a divorce or separate maintenance decree if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage, except that no evidence of personal conduct which may otherwise be relevant and material for the purpose of this subsection may be considered with regard to this subsection if the conduct took place subsequent to the happening of the earliest of (a) the formal signing of a written property or marital settlement agreement or (b) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties.

Post-separation adultery could increase the likelihood or amount of the supporting spouse’s alimony obligation if it affected the economic circumstances of the parties or contributed to the breakup of the marriage. No case law discusses circumstances in which a supporting spouse’s post-separation adultery affected alimony. An unreported 2014 Court of Appeals opinion, Lake v. Lake, reversed an award of permanent alimony in part because the family court incorrectly treated the husband’s post-separation adultery as “fault for the breakup of the marriage.”

Post-separation adultery can also be a factor in equitable division. However, unlike with alimony, such post-separation adultery is only a factor in equitable distribution if it occurs prior to the court issuing a temporary order in the case. S.C. Code § 20-3-620(B) states:

In making apportionment, the court must give weight in such proportion as it finds appropriate to all of the following factors …

(2) marital misconduct or fault of either or both parties, whether or not used as a basis for a divorce as such, if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage; provided, that no evidence of personal conduct which would otherwise be relevant and material for purposes of this subsection shall be considered with regard to this subsection if such conduct shall have taken place subsequent to the happening of the earliest of:

(a) entry of a pendente lite order in a divorce or separate maintenance action;
(b) formal signing of a written property or marital settlement agreement; or
(c) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties.

There is an actual reported case in which a spouse’s post-separation adultery was considered as a factor in equitable distribution. Sharpe v. Sharpe, 307 S.C. 540, 416 S.E.2d 215 (Ct.App. 1992). However the opinion does not discuss how it affected the family court’s award.

Finally–obviously–post-separation adultery remains a ground for divorce. However once a final order of separate maintenance has issued this should probably not be a concern for a client who wishes to date so long as that client does not expose his or her children to those he or she dates.

For a client who wishes to date after separating but before divorcing the key is to reduce the risk that the dating does not lead to a credible adultery claim or a claim that this dating was the cause of the breakup of the marriage. Ideally such dating should be confined to public places and there should be no public displays of affection beyond friendly hugs. One still needs to prove opportunity to commit adultery and an inclination to commit adultery to prove adultery. Limiting the contact to public places and limiting the displays of affection reduces, but does not eliminate, the risk of adultery being alleged.

Put Mr. Forman’s experience, knowledge, and dedication to your service for any of your South Carolina family law needs.

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