Dating While Legally Separated in New York

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.

Legal Separation vs. Pending Divorce: Why It Matters

It is worth being clear about the legal status of a "separated" spouse in New York, because the answer changes how dating affects the case.

Legally separated by a signed separation agreement. Spouses execute and notarize a written agreement that resolves equitable distribution, support, custody, and other issues, and file it with the county clerk. The spouses are still legally married, but the financial relationship is largely frozen by the agreement.
Living apart without an agreement. Many couples physically separate before signing anything. There is no New York "legal" status that attaches automatically; the spouses are simply married people who happen to live in different homes. Income earned and debts incurred between separation and the eventual divorce can still be marital property under DRL § 236.
Divorce action filed but not finalized. Either spouse has commenced an action under DRL § 170, but no judgment of divorce has been signed. The marriage continues until the court signs the judgment.

Dating during any of these phases is legal, but the financial and evidentiary consequences vary. A spouse who is dating after a clean separation agreement that already divides assets has far less exposure than one who is dating during a contested divorce in which equitable distribution is still being fought.

Why Equitable Distribution Still Matters

Under DRL § 236, New York is an equitable distribution state, not a community property state. Property acquired during the marriage — even after separation, in many cases — can be divided between the spouses. When a separated spouse spends money on a new partner, the other spouse can ask the court to credit the dissipated funds back to the marital estate and award an offsetting share of other assets. Common categories of spending that draw scrutiny include:

Hotel stays, vacations, and travel with the new partner.
Gifts of jewelry, electronics, or other significant personal property.
Rent or mortgage payments on a residence shared with the new partner.
Cash withdrawals or transfers to the new partner's accounts.
Joint purchases of vehicles, furniture, or real estate with the new partner.

The longer the paper trail, the easier it is for opposing counsel to construct a wasteful dissipation argument. Spouses who plan to date during separation should keep their finances separate, avoid using joint accounts for the new relationship, and assume that bank and credit card statements will be subpoenaed.

Custody, Visitation, and Introducing a New Partner

Although dating is not itself a custody factor, how a parent integrates a new partner into the child's life can matter. New York judges consistently caution parents against introducing children to a series of romantic partners during a divorce. The best-interests inquiry under DRL § 240 looks at stability, judgment, and the emotional environment in each home. A parent who waits until the relationship is serious, introduces the new partner gradually, and does not require the child to share a bedroom or bathroom with a stranger is far less vulnerable to criticism than one who moves a new partner into the home within weeks of separating.

If the new partner has any history that could raise a safety concern — prior criminal record, child protective services involvement, substance abuse, or open family court matters of their own — the other spouse will almost certainly raise it. Parents should anticipate that the new partner may be deposed, may have their background checked, and may be discussed in any forensic evaluation.

Social Media and Digital Footprint

One of the most common ways dating sabotages a divorce is through social media. Posts, photos, location check-ins, and dating-app activity are routinely subpoenaed or simply screenshotted by the other spouse. Even private messages can be discoverable. A few practical rules:

Assume anything you post will be seen by your spouse's attorney and read aloud at a deposition.
Do not post photos with the new partner, especially in the marital home, in restaurants, or on trips funded by marital assets.
Do not change your relationship status to "in a relationship" or "single" while the divorce is pending.
Tell your new partner not to post about you. Friends and family of the new partner are fair game for screenshots.
Avoid disparaging your spouse online. Family court judges read these posts and form impressions accordingly.

Frequently Asked Questions

Can my spouse use my dating as adultery grounds for divorce?

Adultery remains a fault ground under DRL § 170(4), but it is rarely used today because New York recognizes no-fault divorce under DRL § 170(7) (irretrievable breakdown). Even where adultery is alleged, proving it requires evidence beyond the parties' own testimony, and most adultery claims are dropped once the case turns to settlement.

Will dating affect my spousal maintenance?

Dating itself generally does not affect maintenance. However, cohabiting with a new partner can be relevant to whether maintenance should be modified or terminated, and spending marital assets on the new relationship can support a wasteful dissipation argument.

What if my new partner pays for everything?

That is often the cleanest arrangement, but be prepared to prove it. Keep separate bank statements, do not commingle funds, and avoid taking gifts that could be characterized as reimbursement for marital expenditures.

Can the court order me not to date?

A New York court generally cannot prohibit an adult from dating. Courts can, however, restrict the presence of romantic partners around the children — for example, ordering that no overnight guests of a romantic nature be present during the children's parenting time, particularly while the divorce is pending.

Working With Your Attorney

If you intend to date while separated or during a divorce, tell your attorney. A surprised lawyer cannot get ahead of the other side's discovery. Discussing the relationship candidly with your attorney lets you put financial guardrails in place, prepare a measured response if the other side raises the issue, and reduce the chance that a new relationship becomes the centerpiece of the divorce instead of the actual legal and financial issues.

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].