Extramarital involvement after separation can constitute marital fault. A client’s decision to date during divorce proceedings gives the other spouse plenty of ammunition and a not insignificant advantage in those proceedings
By Marlene Eskind Moses and Beth A. Townsend
Ask nearly any Tennessee divorce attorney whether he or she recommends having a client date or become otherwise romantically involved prior to the conclusion of divorce proceedings. The universal answer should be a resounding no. Until the divorce decree is signed by the judge, a party is still married in the eyes of the law and technically not free to date.
In states such as Tennessee that recognize fault in a divorce case, dating during divorce proceedings can be characterized as adultery, which is a ground for divorce. Adultery is not defined within the Tennessee Code but is widely accepted by the judiciary to mean sexual intercourse between a married person and a third party other than one’s spouse. An emotional affair, while not technically adultery, can still be considered inappropriate marital conduct, the catch-all fault ground for divorce in our state.
If your client is under the impression that merely dating or keeping company with someone is acceptable because his or her spouse will be hard-pressed to prove that actual sex has taken place, he or she is wrong. In this state it has long been held that it is unnecessary to have direct evidence of illicit intercourse and that adultery can be proven rather by a mere preponderance of circumstantial evidence.
Adultery or otherwise inappropriate marital conduct committed after separation is indeed a ground for divorce. If it were not, then, in the words of our Court of Appeals, “any spouse is privileged to ‘move out’ of the marital home and cohabit with another without creating a ground for divorce. Such an interpretation of the statute would largely emasculate its intent and effect.” Furthermore, “[i]t surely takes more than a mere separation of the parties to terminate the obligations incurred when the parties voluntarily entered into the marriage contract.” This has long been the law in our state, as our Court of Appeals opined nearly 60 years ago that the trial court in a divorce action can properly consider matters occurring after the divorce complaint has been filed, as long as such matters have been incorporated therein by amendment or supplemental complaint. Many clients find this perplexing because they feel that once a divorce complaint has been filed, that signals the end of the marital relationship. It is important for clients to realize that this is actually a misperception that could negatively impact not just their lawsuit but also their personal relationships with their soon-to-be ex-spouse and even their children.
Even if the parties have been separated for some length of time, romantic involvement during the divorce proceedings can be used to prove marital misconduct during the marriage. Your client’s morals can be called into question even if he or she had been perfect prior to separation. The other spouse may try to use your client’s post-separation romantic adventures as evidence that the breakup of the marriage was your client’s fault, even if it is not true and even if the meeting of the new love interest did not occur until after the parties’ separation. If there is any allegation of pre-separation adultery, such conduct post-separation will certainly not encourage the judge to believe that pre-separation behavior would have been any different.
How Extramarital Relationships Can Impact the Lawsuit and Beyond
Judges and experts who assist the court in making custody and parenting time determinations are generally not impressed with parties who date during divorce proceedings. More often than not, such behavior is considered poor decision making, callousness toward the feelings of the parties’ children, and poor role-modeling for the children. The slightest nuances in a case can cause the judge’s decision on any topic to fall in your client’s favor or against your client. Obviously, it is in your client’s best interest to do everything possible to make sure the judge sides with him or her. If your client dates during the divorce proceedings, especially if it has an adverse impact on the children, your client may have harmed his or her position with the judge irreparably.
If it can be demonstrated that the infidelity of one parent has negatively impacted the welfare or day-to-day life of a child, this conduct can play a role in the custody and parenting time determinations. In ascertaining which spouse will be the primary residential parent or make the major decisions for a child, the court focuses on what is in the best interests of the child. In making this determination, the court naturally focuses on the parents’ past conduct, during the course of the marriage. If infidelity has caused a spouse to be neglectful on some level to a child, it is an argument in favor of the other parent being awarded sole decision-making authority and primary residential parent status. It is also not unheard of for a judge to remove custody from the de facto primary caregiver who has made the fatal mistake of taking his or her children around a paramour before the divorce is final. Infidelity can also affect the extent of an alternate residential parent’s parenting time with a child.
In the words of The Hon. Anne Kass, former district judge, Division XVII, Albuquerque, New Mexico, divorce cases in which one spouse has become involved with someone else tend to be “horribly acrimonious and expensive because there is very little that can turn a divorce case into a thermonuclear war quite like the involvement of one spouse with a new companion.” Not only will the offending spouse be scrutinized, but so will his or her paramour. Written discovery, depositions, subpoenas, restraining orders and motion hearings can all become part of an otherwise uneventful lawsuit, driving up not just the temperature but the legal fees as well.
The other spouse may knowingly or subconsciously take steps to alienate the children, relatives and friends against the offending spouse. The children may on their own come to feel that the dating parent has abandoned their other parent, causing them to align with the latter. Furthermore, the children will tend not to accept the new love interest even though they might have done so had their parent waited until after the divorce to start dating. Seeing someone new while still legally married may be confusing for the children. It may affect their preference during custody proceedings, as well as the judge’s.
Moreover, once the lawsuit is concluded, the aftermath can be long-lasting. Dating during the divorce proceedings can poison the spirit of cooperation and make the spouses’ post-divorce dealings with one another all the more difficult if they share children. Furthermore, an intimate relationship that starts before a divorce is finalized has very little chance of long-term survival. When the new relationship dissolves, the children experience another loss, if they have been made a part of that relationship. Children who suffer a series of losses can end up with a sense that it is not safe to develop close friendships. That can impact all of their friendships as well as their attitudes about marriage.
Not only can the decision to date prior to the divorce make things more difficult emotionally for your client and his or her family, but there may be negative financial ramifications for your client as well. Often accompanying romantic misconduct is economic misconduct. A spouse who is carrying on an extramarital relationship during divorce proceedings should be aware that spending marital assets in pursuit of this other relationship can violate the statutory injunction that automatically becomes effective upon the filing of a divorce complaint. The legal ramifications of dissipating marital assets in pursuit of an illicit romance can be manifold: an adjudication of civil or criminal contempt for violating the statutory injunction; an adjustment of the division of marital assets to compensate the non-cheating spouse for the wrongful spending of the other; and/or a downward or upward adjustment to a potential alimony award, depending on whether the cheating spouse is the alimony recipient or obligor, respectively.
A spouse’s infidelity, even when unaccompanied by economic misconduct, may affect an alimony award. Tennessee’s alimony statute declares that in determining alimony, one of the factors that the trial court is to consider is “the relative fault of the parties in cases where the court, in its discretion, deems it appropriate to do so.” This usually entails the court considering the fault of the offending party in making its alimony determination. After all, “[a] wife [or husband] whose marriage has been shattered by [her] husband’s [or his wife’s] misconduct should not be left in a financial condition inferior to her [or his] economic situation prior to the parties’ divorce.”
In some situations, infidelity can be a factor in determining the amount of alimony the non-offending spouse pays to the spouse who was unfaithful. A judge has some discretion and flexibility in awarding alimony. For example, if the spouse seeking alimony has engaged in a course of infidelity that was sustained and prolonged, a judge can adjust the alimony award downward. The legal rationale is that the conduct of the spouse, deliberate and offensive to the goals of the marital contract, should not be awarded with anything but the most minimal maintenance award permitted by law.
The potential financial ramifications associated with the decision to date prior to finalization of the divorce can be exacerbated if your client goes so far as to already be living with the paramour before the divorce is final. If your client lives with someone, the court can consider that as somewhat of an aggravating factor in the spousal support analysis. If the financially advantaged spouse is living with a romantic partner, the court may view the dating spouse as having more money available to pay to his or her spouse because the financially advantaged spouse is sharing expenses with the paramour. On the flip side, if your client is the person who is likely to receive spousal support, living with his or her paramour and sharing expenses may cause the court to conclude that your client does not need as much, or even any, spousal support.
Even with respect to child support, when a parent lives with someone else and shares expenses, the court could theoretically use that fact as a basis to set the child support obligation higher (when the obligor is living with someone) or lower (when the child support recipient is living with someone) as an upward or downward deviation from the presumptive amount.
A client’s decision to date during divorce proceedings gives the other spouse plenty of ammunition and a not insignificant advantage in those proceedings. The judge will likely disapprove of the behavior and could develop a slant against your client. This will certainly not improve your client’s position with respect to financial or custody matters. Moreover, long after the divorce is finalized, the family dynamic could be irreparably harmed, and your client’s children may be negatively affected long into the future. Why take this chance?
- See, e.g., Canning v. Canning, 443 S.W.2d 502, 505-06 (Tenn.App. 1968).
- Perry v. Perry, 765 S.W.2d 776, 779 (Tenn.App. 1988).
- Clark v. Clark, 644 S.W.2d 681, 683 (Tenn.App.1982).
- Schwalb v. Schwalb, 282 S.W.2d 661, 671 (Tenn.App. 1955).
- “The Overwhelming Downside to Dating During Divorce,” Kevin C. Gage, http://www.gagelaw.com/DatingDuring Divorce.shtml
- “Dating While Divorcing: The Legal Implications of Dating During Separation,” http://family-law.freeadvice.com/family-law/ divorce_law/dating-while-divorcing.htm
- “The Overwhelming Downside to Dating During Divorce,” supra.
- Formerly referred to as the “noncustodial parent.”
- “Divorce Advice for Infidelity,” Mike Broemmel, http://www.ehow.com/way_5349821_divorce-advice-infidelity.html
- “Dating During Divorce Isn’t Wise,” Judge Anne Kass, http://www.divorcepeers.com/dating-during-divorce.htm
- “Why Dating During Divorce Is Unwise,” http://www.womansdivorce.com/dating-during-divorce.html
- “The Overwhelming Downside to Dating During Divorce,” supra..
- “Why Dating During Divorce Is Unwise,” supra.
- “Dating During Divorce Isn’t Wise,” supra.
- Under Tenn. Code Ann. § 36-4-106(d), upon the filing of a petition for divorce or legal separation and upon personal service of the complaint and summons on the respondent or upon waiver and acceptance of service by the respondent, the following temporary injunctions shall be in effect against both parties until the final decree of divorce or order of legal separation is entered, the petition is dismissed, the parties reach agreement or until the court modifies or dissolves the injunction, written notice of which shall be served with the complaint: (1)(A) An injunction restraining and enjoining both parties from transferring, assigning, borrowing against, concealing or in any way dissipating or disposing, without the consent of the other party or an order of the court, of any marital property …
- Tenn. Code Ann. § 36-5-121(i)(11).
- Gilliam v. Gilliam, 776 S.W.2d 81, 86 (Tenn.App. 1988).
- “Divorce Advice for Infidelity,” supra.
- “The Overwhelming Downside to Dating During Divorce,” supra.
Marlene Eskind Moses is the principal and manager of Moses Townsend & Russ PLLC, a family and divorce law firm in Nashville. She is the immediate past president of the American Academy of Matrimonial Lawyers, and has held prior presidencies with the Tennessee Board of Law Examiners, the Lawyer’s Association for Women, and the Tennessee Supreme Court Historical Society. The Tennessee Commission on Continuing Legal & Specialization has designated Moses as a Family Law Specialist; she is Board Certified as a Family Law Trial Specialist.
Co-author Beth A. Townsend is a partner at Moses Townsend & Russ PLLC, where she has practiced since 2001. She earned her law degree from Vanderbilt University, and her undergraduate degree from Duke University.
This article originally appeared in the Tennessee Bar Journal.