Can I date before my divorce is finalized?
For all the clients who ask me about dating, I have just as many who insist that they’ll never date again. There’s probably lots who fall somewhere in the middle – maybe they’re wondering about dating, maybe they know they’re not ready yet, maybe they just can’t bring themselves to ask the question – but, of course, I don’t hear from those people.
I’m definitely a lurker. Like, if it was me, and I was wondering, I would definitely not come right out and ask. I’d be worried about judgment. I’m always worried about judgment, in fact, so if you are, too, you at least have some company. There are plenty of people who open up to me easily and freely about all sorts of things, which I appreciate, because it’s very difficult to be a good lawyer for someone who won’t tell you the whole truth or who tries to skirt around with half truths.
That being said, though, I know that there are a lot of things that divorce can bring up – like, things about your sex life, your finances, the strength of the relationships in your family, the way you parent your children – that can be uncomfortable or almost impossible to have a conversation about. These aren’t cocktail conversations; they’re in depth questions that you might not have ever even discussed with anyone else before. I get it. It’s hard. And, if I were you, I’d be uncomfortable, too.
So, that’s why I write. Because I know that, for as many women whose questions I’ve answered about dating and everything else that comes up in a divorce or custody case, there are lots of women who wonder but won’t ask. Probably, like me, they’ll search google before they’ll ask a real person face-to-face (or email to email) but they won’t entirely be able to trust the source that they find. So much of the information out there about divorce and custody is crappy; it wasn’t written recently, or it wasn’t written by a lawyer, or it’s not specific to Virginia. You really do need all of those things to be able to rely on something, or, at least, to rely on it to the point that you might be comfortable following it.
At the end of the day, there are consequences, especially in a legal context, for following bad advice. So you definitely want to be careful, but you’ve found your way here which suggests to me that you’re smart anyway. So, good for you!
That being said, though, I do want to point out that I am completely capable of having these conversations and not being judgmental. I understand why you’d want to date again! If it’s the last thing you’d rather do, I can understand that, too. But I’m not here to judge, and I do hope that, if you work with me or one of the other attorneys in my office, you’ll give us a chance to have these real, meaningful conversations with you in person, while contemplating your specific circumstances. We can handle it. (And, trust me, we’ve seen worse.)
So, when can you start dating?
The safe answer is the answer you probably don’t care to hear. The best time to date is, of course, once your divorce has been finalized. Because, even if you’re legally separated, you’re still married until you’re divorced.
It sounds obvious to say that you’re married until you’re divorced, but a lot of people seem to have created a separate category in their minds for separated. Separated is not the same as divorced. Separated is married, actually – not divorced at all. Maybe you’re on the road to divorce, but you have not yet arrived. So you’re married.
The problem is that, if you’re married, having sex with someone other than your spouse is, technically, legally, adultery. Of course, dating doesn’t assume that you’re having sex; technically, dating is allowed. Well, maybe not technically ALLOWED, but it’s not legally prohibited. The part that’s prohibited is the sex – oral, anal, or vaginal sex, specifically.
Adultery is against the law. It’s a misdemeanor, and its rarely (if ever) prosecuted. But its still against the law.
Maybe even more importantly, adultery is a bar to spousal support. So, if you’re hoping to receive spousal support, you really shouldn’t commit adultery.
Sure, you could date someone – and theoretically not have sex with that person – and be fine. But it definitely opens you up to a heightened level of scrutiny.
There’s no scarlet letters in real life; there’s no way to tell which is a relationship where the parties involved have had sex, and which ones haven’t. So, if you do start up a relationship, and your soon-to-be ex is hoping to not have to pay you spousal support, he’s going to do his darndest to prove that you are having sex. He may do something like hire a private investigator to follow you. Will the judge be convinced by the PI’s evidence? Maybe, maybe not. But if an entire case that obsesses over whether adultery has actually taken place doesn’t sound like your cup of tea, maybe it’s best to wait it out. It’s expensive, time consuming, and could ultimately result in you not being awarded spousal support that you might otherwise be entitled to receive.
Is there EVER a time where it’s okay to start dating before a divorce decree is entered and the divorce is officially finalized?
The only other points I’d make is that maybe – just maybe, now – it’s okay, or, at least, not AS risky – to start dating if (1) you already have a signed agreement in place or (2) spousal support is not a factor.
If you already have a signed agreement, it probably contains a provision that says that you are free to live as though ‘single and unmarried’. You’re not – you’re married. But that provision should cover you. If spousal support is an issue, it should already be determined by the agreement. The usual termination stuff – death, remarriage, and cohabitation – still applies, but that doesn’t mean that you can’t date or have sex with a new partner. It just means that you can’t remarry or live with them for a period of a year or more if you want to keep receiving spousal support.
If spousal support is not a factor – like, if your incomes are similar or if you’re the higher wage earner – then adultery is much less important, too. Like I said, it’s rarely prosecuted, so your chances of facing a criminal case because of your adultery are somewhere between very, very slim and absolutely none.
At the end of the day, it’s always up to you to decide how much risk you’re willing or able to tolerate. You are perfectly capable of striking up a relationship with a new partner. It may not be the best decision, under the circumstances, but it’s certainly a choice you are entitled to make. It’s best, though, to make the decision with full knowledge of the potential consequences.
Is it time to start dating? Only you know that for sure!
For more information, or to schedule an appointment with one of our licensed and experienced Virginia divorce and custody attorneys, give our office a call at 757-425-5200.