Dating While Legally Separated – Pitfalls to Avoid

Dating while legally separated is a personal choice. One becomes legally separated when one has signed a separation agreement with the spouse and has the separation agreement notarized and filed with the county clerk.

Technically, one is still considered legally married even if legally separated. So it is understandable that people might think that dating while legally separated may be considered adulterous. Adultery is the engagement of sexual relations with a person other than your spouse and is considered a crime (class B misdemeanor) and a ground for divorce in New York.

However, virtually no one has been prosecuted for adultery in New York. The police is not interested in arresting people for adultery. Since 1972, only 13 persons in New York have been charged with adultery, and only five have been convicted. In these cases, adultery was just added as one of the many crimes that were committed.

Although dating while legally separated is acceptable, remember that you cannot remarry when you are legally separated. You are still considered married to your spouse. After one year of being legally separated, you may file for conversion divorce, attaching the separation agreement. For as long as both spouses still agree on the separation agreement, the terms of the separation agreement have been observed, and there is no contest to the divorce, conversion of the separation agreement to divorce should be easy. The court will decide whether to incorporate the terms of the separation agreement into the divorce decree.

If, however, your dating while legally separated has aroused anger in your spouse, the spouse may contest your divorce. In this case, when you try to convert the separation agreement into a divorce, your spouse might contest the divorce, which could lead you to incur higher legal fees.

If your divorce is currently pending, your spouse’s lawyer may be able to depose the person you are dating to discover when the relationship started, how much was spent on your dates, whether marital property was transferred to the new friend, whether it is sexual, and anything that can be used to further their case. In any separation with high emotional tensions, the introduction of a new partner may anger the other spouse, making them less likely to agree to reasonable settlements. This can make divorce difficult and increase your attorney’s fees.

For example, child custody and visitation are based on the best interests of the child. Dating is not really considered a factor in determining child custody and visitation, but if you flaunt your new partner in front of your children, or if you date several people in front of your children, or if you date a lot and leave the child alone or with a babysitter at home all the time, the court may find that there is a negative impact of this dating for your children, and it could hurt your chances of custody.

Generally, adultery will not be considered in determining the amount of alimony (spousal support). In deciding alimony, the court considers the income and property of the spouses, age and health of the spouses, the length of the marriage, where the children will live, tax consequences, overall marital property division in the divorce, loss of health insurance, acts that prevented a spouse’s ability to gain employment or increase earning ability, and wasteful dissipation of marital property. However, if you buy your new partner a new condo or spend marital assets on lavish vacations and expensive gifts with the new partner, the court could consider this wasteful dissipation of marital property and consider this as a factor in determining the amount of alimony a spouse is entitled to.

What not to do while dating during separation or divorce

If you are separated, and you want to date, here are some recommendations that can save you from major problems:

• Don’t get pregnant or get your new partner pregnant! This can delay and complicate your divorce because of the new support situations to consider.
• Signing and notarizing a separation agreement makes you legally separated and divides up the assets, but does not entitle any spouse to get remarried. If you’d like to marry again, get a divorce.
• Do not spend marital assets on your dates with your new partner. Do not buy your new partner extravagant gifts using marital assets. Do not intermingle marital assets with the new partner’s assets. Keep marital assets separate until the divorce is finalized.
• Do not schedule dates during your scheduled time with your children. Have dates when you don’t have the children. Failing to use parenting time can lead the court to cut the period of time you can spend with your children.
• Don’t change your social media status to single unless you are legally single. Legally separated is not legally single.
• Avoid living with your new partner until the divorce is final.
• Discuss dating arrangements with your spouse so no one will be surprised or get hurt.

If you are considering legal separation or divorce, it is best to consult with a lawyer to know your rights and remedies. Should you need assistance, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].