Early in my career there was a long-ago-retired, rural-county judge who admonished litigants violating the following rule that, “ya cain’t be LIT-I-GATE-in’ in the daytime and FOUR-nu-CATE-in’ in the nighttime.” Technically, this warning wasn’t accurate. While such fornicating arguably sets the clock back to zero for a no-fault, one-year’s separation divorce and clearly condones any misbehavior justifying a fault divorce, nothing in case law or statutes prevents such partially un-coupled couples from litigating issues of child custody, child support, alimony, and property division.
But, just because his advice wasn’t legally accurate, doesn’t mean it wasn’t wise. Family court cases resolve much easier if there’s no longer strong emotions between the parties. The thin line between love and hate is a valid cliché. One goal in family court litigation is to get the couple to a place of indifference–in the sense that they are no longer emotionally triggered by the other’s behavior–rather than hate. When folks can remove emotion from decisions about parenting and money (which is really all that family court litigation entails) solutions become more readily apparent. Too often such solutions are rejected, or never even considered, because one or both parties lets pride or anger rule. Add sex to the domestic litigation equation and the possibility of removing emotion from the process diminishes. In the midst of such litigation, fornicating, or any strong emotion towards the other party, hinders resolution.
I remember Judge Newell saying this many times.