Dating While You’re Separated

For some people getting divorced, the idea of finding someone new is the furthest thing from their minds. For others, divorce is actually a hopeful time, and moving on to a healthier relationship is exciting. If you’re in the latter group, you may want to reconsider opening an account on the various dating apps until you’ve talked to your lawyer about it. Read this article to find out why beginning a new relationship during the divorce process may be unwise.

But Wait, Isn’t Texas a No-Fault Divorce State?

Yes, Texas is what’s called a no-fault divorce state. You do not have to prove that your spouse did anything wrong in order to obtain a divorce. However, you can still allege fault in the divorce proceedings.

Texas courts do not typically consider which spouse is “at fault” when deciding whether to grant a divorce. But fault can affect other aspects of your divorce, like how property is divided and if spousal support is awarded.

Adultery is Grounds for Divorce in Texas

Adultery, or voluntarily being in a physically intimate relationship with someone who is not your spouse, is one of seven grounds under which a person can seek divorce in Texas. Tex. Fam. Code § 6.003

“Grounds” are legal justifications for ending a marriage. You are required to prove at least one ground before the court will grant your divorce.

Is Dating During a Divorce Considered Adultery?

Serving divorce papers may feel like a conclusive end to your marriage. So if your marriage is over, you can’t possibly be accused of cheating, right? Not exactly.

In the eyes of Texas family courts, you could technically be committing adultery if you enter into a new relationship before your divorce is final:

“Adultery does not have to occur pre-separation for it to be a ground for granting a divorce.” In re Marriage of C.A.S., 405 S.W.3d 373, 379 (Tex. App. 2013)

You may trust that your spouse isn’t vengeful, but you still want to avoid handing them ammunition to use against you in divorce proceedings. After all, lawyers have a saying: “Criminal court is bad people on their best behavior, and family court is good people on their worst behavior.”

If your split is particularly acrimonious, or if you know certain issues are being contested in your divorce, a new relationship may cause more trouble than it’s worth.

Your spouse might claim that the romance predated the divorce process, which could constitute adultery and therefore impact issues such as:

• property division
• alimony
• child custody

Let’s take a closer look at how adultery can affect each of these issues in a Texas divorce.

How Post-Separation Adultery Can Affect Property Division

You May Receive a Smaller Share of the Marital Property

Texas is a community property state. This means that when a couple divorces, each spouse gets to keep his or her own separate property acquired before the marriage. Tex. Fam. Code § 3.101

Community property, or everything acquired by either spouse during the marriage, will be divided evenly between spouses. Tex. Fam. Code § 3.002

The courts generally look at all the community property – all the mutual assets and debts – and split it down the middle as fairly as possible.

However, if infidelity played a role in the divorce, the court may disproportionately divide the marital property in favor of the spouse who did not commit adultery.

Even if your new relationship began after the divorce was filed, until you have an actual divorce decree, the courts may still consider it adultery.

Dating during divorce can affect how much you receive in the divorce settlement. Let’s look at an example from Collin County.

Wife Alleges Post-Separation Adultery

In this case, the wife moved out of the marital home in March 2009, but she had hoped to reconcile with her husband. Instead, the husband began a relationship with another woman.

The wife initially filed for divorce in August 2009, citing irreconcilable differences. Shortly before trial, however, she filed an amended petition seeking a disproportionate share of the marital estate on the grounds that her husband had committed adultery.

The wife presented evidence of her husband’s trips to Europe and the Bahamas with his girlfriend, as well as several expensive gifts he had purchased for her.

Finding that the husband had indeed committed adultery, a Collin County district court granted the divorce and awarded the wife a staggering 81 percent of the marital assets.

Husband Appeals

The husband argued on appeal that the court was wrong to blame him for the dissolution of his marriage. He admitted to beginning a “personal relationship” with another woman at the end of 2009, but he claimed it did not turn romantic until the beginning of 2010 – nearly six months after his wife initiated divorce proceedings.

However, the wife had hired a private investigator who filmed the husband hugging and kissing his girlfriend in September 2009. The wife also testified to finding a woman’s underwear and suitcase in the master bedroom of their marital home that same month.

All this evidence was enough for the Fifth Court of Appeals to conclude that the husband had committed adultery and that his adultery had broken up the marriage:

“Although there was conflicting evidence about when the relationship began, [Husband’s] relationship with [Girlfriend] was undisputed.” In re Marriage of C.A.S., 405 S.W.3d 373, 383 (Tex. App. 2013)

You Could Be Accused of Marital Waste or Fraud

Each spouse in a Texas divorce is entitled to a “just and right” division of the marital estate. Tex. Fam. Code § 7.001

You may (wrongfully) assume “just and right” means 50/50. However, that definition is at the court’s discretion and largely depends on circumstances specific to your case.

If you use marital money to take your new partner out to dinner, your spouse may accuse you of marital waste, also called “fraud on the community.”

Example of Marital Waste While Dating

Your spouse could use seemingly innocuous purchases as proof of marital waste. For example, let’s say you bought a new outfit, went on a date with your new partner, and posted pictures of yourself on social media. Your spouse could claim you spent marital funds on those clothes and therefore committed fraud on the estate.

If your soon-to-be ex can provide enough evidence to support this claim, the court may decide it is “just and right” to:

“award him or her an appropriate share of the community estate remaining after the fraud on the community;
award a money judgment in favor of your spouse and against you; or award your spouse both a money judgment and an appropriate share of the community estate.” Tex. Fam. Code § 7.009

How Post-Separation Dating Can Affect Alimony

In Texas, alimony is actually termed spousal maintenance or spousal support. It is a monetary payment to a former spouse that continues after divorce.

Texas has some of the nation’s strictest spousal support laws, and a judge will not typically consider factors like adultery when deciding whether to award it. However, if the court determines that a spouse is eligible for spousal support or alimony, then the judge can consider adultery or misconduct by each spouse when determining the monthly payment amount.

Importantly, moving in with your new partner may mean you forfeit your ability to obtain spousal support. Courts may take this as a sign of an improved financial situation and decide that you do not need financial assistance from your ex.

Conversely, if you make more money than your spouse and decide to cohabitate with your new partner, the presence of two incomes may prompt a judge to increase the monthly payments you are required to send your ex.

How Post-Separation Adultery Can Affect Child Custody

If you have children and are already anticipating a bitter custody dispute, you should be aware that your soon-to-be ex-spouse may drag your new partner into the mix.

Your partner’s criminal record, work history, and lifestyle could become fodder in your ex’s argument for more time with your child.

If your new partner is going to play a significant role in your children’s lives, the court will have to take these factors into consideration when deciding custody matters. It may seem unfair, but your relationship and your new partner will be under intense scrutiny if you decide to date before finalizing your divorce.

Proving Post-Separation Adultery: It’s More Than Just Dinner

Adultery means voluntary sexual intercourse between a married person and someone who is not their spouse.

Therefore, swiping right on Tinder or grabbing dinner at Sonny Bryan’s will not necessarily derail your divorce settlement. But going back to their place afterward might.

Even then, courts will only accept “clear and positive proof” of adultery. In re S.A.A., 279 S.W.3d 853, 855 (Tex. App. 2009)

Innuendo is Not Proof of Adultery

There is no legal standard for what constitutes “clear and positive proof,” but Texas courts have held that “mere suggestion and innuendo is insufficient to prove adultery.” In re Hashimi, No. 14-17-00488-CV, 2018 Tex. App. (Tex. App. Aug. 30, 2018)

The wife in the above-cited case showed the court photos of messages exchanged between her husband and another woman, including messages in which the two declared their love for each other.

However, since the wife presented no proof that her husband had “extramarital sexual relations” with the other woman, a Galveston County district court opted not to grant her a divorce on the grounds of adultery. The Fourteenth Court of Appeals upheld that decision. In re Hashimi, No. 14-17-00488-CV, 2018 Tex. App. (Tex. App. Aug. 30, 2018)

Considering Dating While You’re Separated? Talk to an Attorney First.

Don’t get us wrong, you absolutely deserve to find happiness in the wake of one of the most emotionally devastating times of your life. But don’t let a resentful ex use that newfound happiness to sabotage your fresh start. And definitely don’t start a new relationship during the divorce process without speaking to a lawyer first. If you have already done so, call 214-884-3775 to begin a case assessment with one of R&H’s Texas family law attorneys.