One of the most frequently asked questions that divorce attorneys receive is: can you date while separated in South Carolina? Although the answer may seem like an obvious “yes” because the marriage is coming to an end, there are good reasons to exercise caution.
Before making any major decisions it’s important to understand the potential consequences by speaking with our skilled Greenville, SC family law attorneys. Turner Family Law is your trusted legal advocate.
Can Dating While Separated Be Considered Adultery?
Before a married couple can get divorced, they must be separated for one year. During this one-year period the spouses are still legally married to each other. While there is no law that explicitly states that a separated couple cannot date, any dating can be viewed as adultery because the two remain married. This opens the door to potentially being accused of adultery, which can affect a number of issues in your divorce.
A spouse does not have to prove that you actually engaged in sexual relations with another person in order to show that you committed adultery. The only requirement is that you had the opportunity and inclination to do so. A private investigator could follow you to a place where you could have had an affair, even if you didn’t actually do so. This may be enough to support a court’s finding that you cheated on your husband or wife.
How Can Adultery Impact the Issues in Your Divorce?
Judges overseeing family court matters take allegations of marital misconduct, including adultery, seriously. If the court is convinced you cheated on your spouse, even during your separation period, your spouse will have grounds for fault. An otherwise no-fault divorce that becomes a fault-based divorce will affect alimony, property division, and potentially child custody.
Alimony
If you are the party who is ordered to pay alimony, South Carolina law allows the judge to take adultery into account when setting the amount and duration of payments. State law specifically allows evidence of marital misconduct that contributes to the breakup of a marriage to be considered. Conversely, if you are the spouse who is seeking alimony, a finding of adultery against you will completely prevent you from receiving any.
The adultery must have taken place before a settlement agreement or a written order for separate support and maintenance is entered.
Property division
The court must equitably divide the spouses’ marital property as part of the divorce. The law permits judges to consider adultery when splitting up assets. This means that a judge can decide to award you a smaller share of the property. As with alimony, a court may evaluate whether the adultery caused the marriage to end. It must have happened before the settlement is approved or the order for separate support and maintenance is entered.
Another basis for using marital misconduct to determine property division is if it affects the “economic circumstances” of the spouses. For instance, if a spouse liquidates marital property to spend money on a paramour, the court may award that spouse fewer assets.
Child custody
Finally, dating while separated can impact your rights as a parent. Judges must always consider the best interests of the child when making any decisions that involve child custody or visitation.
If a judge believes the affair was immoral and negatively impacted the child, this can justify the cheating spouse being awarded less time with the child. It’s likely worse if the spouse exposed the child to his or her romantic partner.
Another way in which cheating may affect custody is based on the person you’ve cheated with.
If that individual does drugs, drinks too much alcohol, or engages in other illicit behavior, the judge may grant you less time in order to protect the child. It should be noted that even if a settlement agreement is in place or a custody order is entered, evidence that your new partner has a negative influence on your child can alter custody arrangements. The judge can always revisit custody if the circumstances warrant.
When Can You Date After Filing for Divorce?
In light of the above, when can a spouse finally begin dating again? There are two criteria that should be met before you think about romance with someone else:
- Wait until a court order: Do not date until the court has either entered a permanent order of separate support and maintenance or the judge has signed an order that approves your settlement agreement with your spouse. Meeting this standard can help you with both alimony and property division since adultery can only be taken into account if it happens before the occurrence of one of these two events.
- Be responsible about who you date: It’s important to be mindful of who you date, especially if you have children. Even when you begin dating it’s a good idea to not bring your new interest around your children right away.
Bottom Line: Be Cautious About Dating
There’s no reason to give your spouse or ex-spouse any reason to bring up adultery or related matters that may impact alimony, property division, or custody. Don’t forget that even if the divorce is finalized the court may revisit custody if the person you date presents a threat to your child’s best interests.
Contact an attorney
If you’re thinking about dating while separated, you owe it to yourself to at least speak with legal counsel first. Attorney J. Michael Turner can advise you as to any issues associated with getting a divorce in Greenville, SC. Give us a call at 864-778-2734 today, or use our online contact form.
