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Recently, we had a case where both parties began relationships after they were separated but before their divorce was final. The question is:  should these relationships be considered during a divorce case, even after the marriage was, for all intents and purposes over? There are several factors to consider, including when the separation officially began. Let’s take a closer look. 

Last Date of Physical Intimacy

One subject that will come up in a divorce case is the last date of physical intimacy. While this seems very personal and not anyone’s business, it could be an important consideration. That’s especially true in terms of separation and for either party to establish if and when their partner was engaging in an affair. 

Since physical intimacy, and even regular affection, is one of the cornerstones of a marriage, the suspension of these interactions defines a separation, even if either party doesn’t move out of the home. In fact, couples that move into different bedrooms with the express purpose of suspending intimacy have, for all intents and purposes, separated. That last date of physical intimacy is what will define the separation in most cases, but in the end,  it is a state of mind combined with suspension of physical intimacy or affection.

Relevancy of Post-Separation Relationships

Assuming that a separation has occurred, there is a question about the relevance of relationships outside of the marriage. An affair, of course, is when one spouse engages in extramarital relations. But if the couple is officially separated without a chance at reconciliation, is a post-separation relationship relevant to a divorce case? 

For a client whose former spouse presented a very similar situation as evidence of an affair, Scott Shaw  was able to demonstrate that post-separation relationships were not relevant to the case at hand.  This matters because it kept the relationship from being presented to the court to try to obtain more money from the marital estate, and it could not be used as a shield to defend against an award of alimony (a party who ends the marriage by having an affair is not entitled, as a matter of law, to an award of alimony from the other spouse).

The legal issue as to whether or not an affair is relevant in a divorce can also change depending on whether or not the affair was later “condoned” by the aggrieved spouse.  If so (basically forgiven and the spouses move on) then legally an extra-marital affair, that has been condoned, is not considered adultery in a divorce.

Beyond how a court divides the marital estate, and awards of alimony, the issue of adultery can play a pivotal role in a divorce.  In other cases, Scott Shaw had the divorce filed by the aggrieved spouse dismissed based upon factors surrounding the alleged adultery.  The issue of adultery can play a pivotal role in divorce and may be used to a client’s advantage, depending on the circumstances.  It is amazing sometimes how the issue can impact your case whether you are the aggrieved spouse or the spouse in the extra-marital affair. 

When is it an Affair? 

So, when is it an affair? Unfortunately, affairs do happen and they’re often the basis for divorce cases. When this happens, it’s extremely relevant and will be an important issue in the continuing discussions about the marriage and what happens next. 

Disputing the Dates of Separation 

What did come into play in a case Scott Shaw recently represented was a dispute on the dates of separation. If one party believes that a separation occurred much later than the other party, a relationship that began during that disputed time could be considered infidelity. 

The evidence will need to be provided that the state of separation did or did not occur before the other relationship and that the relationship did not prevent the parties from reconciling.  Further, the date of separation itself can be an extremely important issue in defining what property should be divided and how.  An earlier separation date can often be used to prevent the spouse from having a share in subsequently acquired property, and vice versa.  It is not a trivial issue in many cases.

Do you want to know more about separations, affairs, or post-separation relationships and how they could affect your divorce case? Contact Shaw Law today.