All is fair in love and war…well, the judge may differ with this opinion. Many persons going through a divorce experience a euphoric feeling of freedom during the initial phase of the case. It can be exciting, right? A new chance at true love. That confidence booster you really needed. Or perhaps time to do those things you have always wanted to explore. However, the most important issue to realize at this stage of your “new-found freedom” is that you may want to decline the impulse to date until such a time the Court has ordered your divorce FINAL.
In Tennessee there are two types of grounds for divorce-fault, or no-fault. The no-fault grounds for divorce are “irreconcilable differences” (yes, the 1984 film starring Ryan O’Neal and Shelley Long was aptly titled for this situation) and “living in separate residences and not cohabiting as spouses for at least two years” (this ground applies only if the couple has no minor children). The fault grounds for divorce are a little more interesting, and some are very obvious. They include, but are not limited to impotence, bigamy, desertion of over one year, incarceration for a felony, attempting to take the other spouse’s life, pregnancy by another person without husband’s knowledge, habitual drunkenness or drug abuse after the marriage, inappropriate marital conduct, abandonment, and last but not least-adultery.
So, let’s think about this for a moment. Adultery is grounds for a “fault” divorce. When you and your spouse decided to end your marriage, your Complaint for Divorce stated the grounds as “irreconcilable differences.” Then-that aforementioned euphoric feeling of freedom enters. The juices are flowing. That attractive man or woman you have always wanted to talk to happens to be in line with you at the coffee shop. One thing leads to another and…BOOM, you are now seeing each other and dating. Sounds exciting, right? WRONG. You have now opened the door for your spouse (yes, you are still married at this point until the Court enters your Final Decree of Divorce) to amend his/her Complaint for Divorce to include grounds for adultery. 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. Many people fall under the false-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.
Seems harmless, this dating thing. I mean you and your spouse are clearly done. You and your spouse have amicably been working out the small details and are very close to an agreement for the majority of the issues you must show the Court. You have calm, kind, personable communications regarding the children (if any) or the house, etc…. The judge, however, will look at this decision of yours to jump so quickly back into the world of dating very closely. How? Good question.
In the event your case involves minor children, the judge or any other experts that will determine custody and/or parenting time will not be too happy with the fact you have decided to date during these divorce proceedings. Why? This behavior shows poor decision making, “callousness toward the feelings of the parties’ minor children, and poor role modeling.”  This behavior can have a great effect on how the Court will view what truly is in “the best interest of the child.” A parent’s decisions and past conduct can obviously be instrumental in determining who will make the major decisions in the child’s life, and quite possibly who will be the primary residential parent.
This is where you stand up proudly and exclaim, “Don’t worry about it, we don’t have any minor children!” Well sorry but you are not off the hook so fast. The Court can, and will use its discretion in determining the amount of spousal support (a/k/a alimony) based upon infidelity. In certain situations, infidelity can be a factor in determining the amount of alimony the non-offending spouse pays to the spouse who was unfaithful. Additionally, 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.
In conclusion, if you are going through a divorce and have a question whether or not you should begin dating, take heed that there may be serious repercussions in doing so. Although your emotions may be telling you that it is right, the law may prove differently.
The professionals at Cole Law Group have the knowledge and experience to assist you with any questions you may have regarding divorce. Please contact us at (615) 490-6020 to request a free initial evaluation.