In several jurisdictions, if you are living separate from your spouse and you have no intent to resume the marital relationship, then you wouldn’t be committing adultery by dating someone else. Your spouse can’t use your post-separation conduct as the fault basis for a claim for alimony, post separation support, criminal conversation, or alienation of affection. So the simple answer is, you can start dating someone else as soon as you’ve separated from your spouse. However, this does not mean that immediately reentering the dating pool is a good idea.
Why You Need a Divorce Lawyer
Why? First, if your spouse finds out you are dating someone new, it could negatively affect his or her willingness to settle pending claims at mediation or otherwise prior to trial. This could increase your cost and stress. It could also make the resolution a public matter that is resolved in a courtroom, instead of in private.
Second, conduct after separation can be used as evidence to corroborate conduct prior to separation. Your spouse could try to use your new beau to prove that you were cheating during the marriage in order to bolster a claim for alimony. What does cheating have to do with alimony? Cheating is a form of marital misconduct. Marital misconduct can be considered to increase an award of alimony if the marital misconduct was committed by the supporting spouse, or to deny or reduce the amount of post separation support or alimony that might otherwise have been awarded if the marital misconduct was committed by the dependent spouse. Marital misconduct is defined by statute to include, among other things, the following:
- Illicit sexual behavior (with someone other than the spouse, without permission or forgiveness of the spouse)
- Abandonment of the other spouse. Constructive abandonment while living together counts (e.g. your doesn’t talk to you or sleeps in a different bed, withdraws physical love and affection, no mental or emotional support
- Malicious turning out-of-doors of the other spouse (one spouse kicks the other out of the house)
Wait Until Your Case Is Over
Finally, if your spouse believes you cheated, even if you didn’t, he or she could file a lawsuit for criminal conversation or alienation of affection. During such a lawsuit, opposing counsel could comb through your personal correspondence, pictures, laptop and phone as a part of the discovery process. Even if the suit is ultimately unsuccessful, your spouse could cause you and your new partner emotional pain, financial strain, and public embarrassment.
The bottom line: you can start dating upon separation, but you should wait until your case is over.