Dating While Separated: Emotional and Legal Issues in North Carolina

So you've just separated from your spouse.  Of course, your mind is filled with questions about what to do next.  Who's going to get custody of the kids? Am I entitled to post-separation support (pss) or alimony? Am I going to be required to pay pss or alimony, and, if so, how much? Who's going to keep the house? Do we refinance? What about all of our debt? But, you might also be wondering, how soon can I move on?

What About Dating?

Sure, it's the question we all want to ask but are too embarrassed to come out and say, "Can I date while I'm separated?"  Remember all throughout school when everyone told you, "There's no such thing as a dumb question"?  Well, that old adage applies here.  Put aside your embarrassment, and ask.  Your attorney is not going judge you (and if they do, you need to find a new attorney right away).  The most important thing you can do right now is be informed.  And, while it may seem strange or uncomfortable to ask this question, it is certainly a question you should be asking because what you do during the period of separation can have serious, irreversible consequences.

Potential Consequences

Beginning a new relationship before your divorce is finalized has emotional, strategic and legal consequences.  While I believe you should deeply consider the emotional aspect of entering into a new relationship before you are legally divorced -- the emotional effect on you, your children, other family members, and even your spouse -- I won't address that in this forum.  I am not versed in psychology or counseling, and I suggest you seek out someone licensed to deal with those emotional issues before entering into a new relationship.  However, I will discuss the legal and strategic consequences.

So, let's get on with it.  What is the answer?  Unfortunately, there is no definite answer.  Don't you just love gray areas? My suggested answer – my advice to you – would be:  don't do it! Realistically, many people are in relationships at the time of the final divorce decree.  Realistically, you are an adult and no one wants to be alone.  But, I would advise you to think long and hard before entering into relationship before you are divorced, and to remember, if the "new" person in your life really cares about you, he or she will understand the situation and can wait the few months until your divorce is final.  So, if you can, WAIT.  Here's why:

You Are Still Married

The bottom line is this: until your divorce is final, you are still legally married.  That's just the hard, ugly truth.  Even though you have a separation agreement, in the eyes of the law, you are still legally married and, therefore, not free to date. 

Now, I don't mean to scare you, but let's think worse-case scenario here.  In North Carolina, sexual relations with someone other than your spouse is a crime, and adultery is technically a misdemeanor.  Now, that is the worse-case scenario, and hopefully an unlikely scenario.  However, what is more likely to happen is for the new relationship to have negative effects on issues such as alimony, child support, child custody and visitation, and the negotiations process.  Furthermore, your relationship can also affect your "new" person adversely and cause legal consequences for that person, which I will briefly talk about at the end of this article.  Besides these legal issues, your relationship may rub your current spouse the wrong way which could lead to a break down in negotiations and the willingness of your current spouse to cooperate. 

Child Custody Issues

So, let's delve into these separate issues.  We'll start with child custody.  How can a relationship prior to your divorce effect custody?  When you're sitting in court, your attorney will direct your legal argument.  But the truth is, no matter how hard your attorney argues on your behalf, there is another attorney arguing just as hard on the other end, and if they can bring up your new relationship, believe me, they will.  Now, although the law says North Carolina is a "no fault" state and that marital fault (ie: your new relationship can be viewed as adultery although you are separated) does not lead to any automatic determinations, it will certainly be a consideration.  And, a real, live human is making the decision, and this human – the judge – has fairly wide discretion (ie: they are THE boss).  Some judges won't consider the new relationship too heavily, or even at all, but you might get a judge that finds the idea of you dating while you are still technically married completely immoral and revolting. 

Now, while you may want to move on and put the former relationship behind you, if children are involved, you will be tied to that person for some length of time. That means that although you get divorced, you are still going to have to carry on a parenting relationship with the other parent. While what you do post-divorce is really none of the other party's business, the fact is that what we do has an effect on how other people relate and deal with one another.  Rubbing the other parent the wrong way probably won't help with post-divorce cooperation.  These kinds of issues will be on the judge's mind when making determinations of who will be the most "fit" parent, what kind of custody should be ordered, and how liberal of visitation the non-custodial parent receives.  A judge may be reluctant to expose and introduce your child(ren) to this new person. 

Child Support

So, what about child support?  In North Carolina, child support is set using the North Carolina Child Support Guidelines.  Generally, the amount of support under the guideline is presumed sufficient to meet the child's needs; however, the court may deviate from the guidelines.  Generally, the guidelines use each parent's income as one factor in determining the amount of support to grant.  If you begin living with another person and sharing expenses, the court may reduce the amount of child support you will receive. 

Spousal Support

Moving on.  What about the effect any relationships may have on the amount of support you are required to pay, or the amount of support you will be eligible to receive.  Believe it or not, this is where the law can get tricky, and where the consequences could be the heftiest.  North Carolina is a no-fault state, but that doesn't mean the judge will turn a blind eye to any marital misconduct.  Since 1995, a showing of marital misconduct is no longer required for a claim of post-separation support or alimony.  However, the North Carolina statute still maintains the concept of marital misconduct.  Even a relationship post-separation can be used as evidence to prove that similar behavior and conduct was occurring during the marriage prior to separation. 

Marital misconduct is a number of behaviors – illicit sexual behavior (ie: a sexual relationship with someone other than your spouse) is just one "type" of marital misconduct.  A dependent spouse who has committed an act of illicit sexual behavior before the date of separation cannot be awarded alimony. A supporting spouse who has committed an act of illicit sexual behavior before the date of separation must pay alimony. When both spouses have committed acts of illicit sexual behavior, the court will weigh the relative fault of the parties to determine whether support should be awarded. "Illicit sexual behavior" includes sexual intercourse and other sexual acts engaged in with someone other than your spouse.

Effect of Cohabitation

Other than the issues discussed above, your relationship could also cause issues if you begin to cohabitate with one another.  In determining how much, if any, support you should receive, or even if support should continue, the court will certainly look into whether or not you are cohabitating.  Sharing a residence can reduce what the court sees as your monthly expenses, thereby reducing the amount of support award you will receive.  And finally, cohabitating can be cause for the court to terminate your award of support altogether.

Effect of Your New Relationship on a Settlement

Now, you may have read the above and be thinking, "No sweat. We don't have children, and I'm not too worried about receiving and/or paying alimony."  Stop right there.  Even if those issues are not relevant to your case, almost everyone going through a separation and divorce must attempt to negotiate and reach a fair settlement with their spouse at some point.  Carrying on a new relationship during this process may be hurtful to the other party, or may, quite frankly, make the other party angry and hostile.  Hurt, anger and hostility do nothing in terms of moving smoothly through the negotiations process for you or your attorney.  As petty as you may think it is, a hurt or angry spouse may be less likely to cooperate or agree to a "fair" division of your property, assets or debts. 

Potential for Lawsuit

And, finally, your "new" person could be exposed to lawsuits.  In North Carolina, those old "heart balm" lawsuits are still alive and well, though maybe sometimes forgotten.  But, I promise you, an angry spouse seeking revenge might not so easily forget these old stand-bys.  The two actions that can be filed against your "new" person are a claim for alienation of affections and a claim for criminal conversion.  Claims for Alienation Of Affection relate to your dating during the marriage.  However, a claim for criminal conversion can succeed with regards to "extra-marital" relations either before or after the date of separation.

The Bottom Line

Dating during your separation can be a tricky subject.  My advice to you would be to avoid it altogether, if possible.  However, if you have been separated for many years, or your divorce is uncontested, it may not be as big of a factor for you.  The best answer I can give you is to seek the advice of your attorney.  Communications with your attorney are confidential, and your attorney is there to be your advocate.  We can only put our best foot forward for you if you are upfront and honest with us.  Let go of any fear, hesitation or embarrassment you may have and openly discuss the situation with your attorney and move forward with the advice that is tailored to your unique situation.

From the Author: North Carolina Divorce Attorneys

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