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DIVORCE: LEGAL CONSEQUENCES OF DATING ETC. |
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Doesn't the law, in effect, state there is no legal consequence if I date during the divorce proceedings? |
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Would you , Joe Gitlin, advise your client that it is okay to date etc.? |
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Why is your advice different than what the law states? |
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But wouldn't it matter if he is spending money on his girlfriend? |
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May the dating/infidelity "unofficially" impact on the financial aspects of the divorce case? |
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May infidelity impact on whether I obtain custody of the children? |
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If I suspect my spouse of infidelity should I hire an investigator? |
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Are there shortcuts for determining if my spouse is involved with someone else? |
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Are there places other than the phone and credit card bills where I can look to determine if there is infidelity? |
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Are there any telltale signs that my spouse may be involved in an extramarital affair? |
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| Q: |
Doesn't the law, in effect, state there is no legal consequence if I date during the divorce proceedings? |
| A: |
Yes. The statutes dealing with child support, maintenance (alimony) and property division state that these awards are to be made "without regard to marital misconduct," and so, officially , dating, or for that matter, having an affair, does not have any legal consequences on the financial outcome of the case. |
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| Q: |
Would you , Joe Gitlin, advise your client that it is okay to date etc.? |
| A: |
No. Absolutely not. My strong advice to all my clients is that as long as you are married you conduct yourself as a married person and you do not date etc., and if you do, it should be at least 500 miles from home with a written guarantee from God that you will not be caught. |
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| Q: |
Why is your advice different than what the law states? |
| A:: |
About 95% of divorce cases are settled by agreement of the parties (usually negotiated by their attorneys) and the cases do not go to trial before a judge. When, however, one of the spouses suspects or knows of infidelity, the "innocent" spouse often wants to get even, so settlement negotiations become all the more difficult. Usually when infidelity is involved or suspected, because negotiations become much more difficult, the attorney's fees for the divorce will be double or triple what they would otherwise be. |
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| Q: |
But wouldn't it matter if he is spending money on his girlfriend? |
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Yes. In Illinois there is "dissipation" rule: if a spouse spends marital (earned etc.) funds for a non-marital purpose when there are irreconcilable differences in the marriage, this is "dissipation," and the spouse spending the money has to put it back into the marital pot for division between the parties. For example, the husband takes his girlfriend on vacation to Hawaii which costs $10,000. This is dissipation. He has to pay it back. |
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| Q: |
May the dating/infidelity "unofficially" impact on the financial aspects of the divorce case? |
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Yes. If the case goes to trial, in most instances the judge will not consider evidence of infidelity in making the financial awards in the case, but if the infidelity is egregious (outrageous, in your face, totally indiscreet), while the judge should not do so, the judge is human and the judge may "shave points." |
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| Q: |
May infidelity impact on whether I obtain custody of the children? |
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Yes, but it depends. The child custody statute states that the judge should not consider the conduct of a parent that "does not affect his (or her) relationship to the child." So a discreet affair, which does not result in the child being neglected, or the child being exposed to the marital misconduct, should have no impact on the custody award. Illinois appellate courts have stated that a parent's morality in regards to sexual conduct does not enter into child custody determinations. This is the law. The fact is, however, that many judges are morally conservative and sexual misconduct may in fact play a part in the custody decision |
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| Q: |
If I suspect my spouse of infidelity should I hire an investigator? |
| A: |
No, not usually. Investigators are expensive, and especially if you do not know approximately when and where the misconduct will take place. In child custody cases the parental misconduct may impact on the child and thus may make a difference, but even in those cases a spouse should have the lawyer retain the investigator and keep the investigator on a short leash.
Investigators to prove grounds for divorce are rarely necessary. Consult with your lawyer before you hire an investigator to establish adultery as grounds for divorce. |
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| Q: |
Are there shortcuts for determining if my spouse is involved with someone else? |
| A: |
Yes. First, does your spouse have the opportunity for infidelity? Does your spouse travel away from home? Does your spouse work irregular hours? Does your spouse have unexplained absences from home?
Also check the paper trail. The first trail is credit card bills. Anything unusual? The second paper trail is telephone bills and especially those bills which the "innocent" spouse is not expected to see, such as cell phones. Are there any repeated numbers you do not recognize?
Some of the paper tracking will be available before divorce proceedings are filed, but after the divorce is filed, the suspected spouse can be required to produce documents, and documents can be subpoenaed from the original sources, such as the telephone company, the bank etc. |
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| Q: |
Are there places other than the phone and credit card bills where I can look to determine if there is infidelity? |
| A: |
Yes. After many years of observing I believe that some of the people involved in extramarital relationships have an unconscious wish to be caught, because of where they leave evidence of their "wrongdoing." In many cases a spouse's "wrongdoing" has been discovered because he left evidence of misconduct in his briefcase, or in the trunk of his car. There may also be evidence in the computer. Cyber "affairs" are becoming common place. Brief cases and car trunks are favorite hiding places. |
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| Q: |
Are there any telltale signs that my spouse may be involved in an extramarital affair? |
| A: |
Yes. Look for a change in clothing style, hairstyle, colognes, weight loss and cosmetic surgery. These changes may be indicative of a mid-life crisis, but a mid-life crisis is often what leads to a divorce. |
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