If You Are Separated, Can You Date in New York City

When people separate from their spouse, they often ask, if you are separated, can you date? In answering this question, first, we define, what is separation. Second, we define, what is dating.

There are different degrees of separation. You and your spouse could live in different rooms, but still live in one roof. Or you can be living in separate roofs but have not filed for divorce nor have you signed any separation agreement. Of you are living in separate houses and have already signed a separation agreement but have not filed for divorce. Or you are living in separate roofs and have not filed a separation agreement but have filed for divorce.

In defining dating, there is dating where one is seeing several people with no sexual relations. There is dating where one is engaging in sexual relations. Sexual relations is important in considering whether one has committed adultery, which is a crime (class B misdemeanor) and also a ground for divorce in New York. Adultery is the engagement of sexual relations with a person other than your spouse.

If you and your spouse still live in one roof but only sleep in separate rooms, this is not considered separation. It is wise not to date publicly until you have physically separated with your spouse and are actually living in separate roofs.

In most cases of separation (as long as you are living in separate houses), dating and meeting several people with no sexual relations is acceptable. Even dating with sexual relations when separated has been considered acceptable to society. In New York, virtually no one has been prosecuted for adultery. 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.

When one asks, ‘if you are separated, can you date?’ The short answer is yes. However, be aware that there are certain consequences that may arise from dating during separation or divorce. Dating during separation or divorce may have an impact on the amount of spousal support, distribution of marital assets, and your attorney’s fees.

For example, if you are physically separated and currently negotiating a legal separation agreement with your spouse regarding terms of spousal support, custody, visitation schedules, child support, division of property, and bills payment, a spouse who sees you flagrantly dating might be hurt and vindictive, and might play hardball in negotiating spousal support, distribution of marital property, custody, and visitation schedules. Your spouse can claim that the relationship started during the marriage and before separation and use it as leverage in negotiating terms.

In the same way, 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.

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 situation 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.

What "separation" actually means under New York law

Many people use the word "separated" loosely. New York law recognizes a few different statuses, and the legal consequences differ:

• Informal separation means the spouses are simply living apart. There is no written agreement, no court order, and no divorce action filed. Legally, the marriage is intact. Both spouses remain each other's surviving spouse for purposes of inheritance, elective share, and health benefits.
• Separation by written agreement means the spouses have signed and acknowledged a separation agreement under Domestic Relations Law (DRL) § 170(6). The agreement can address support, property, and custody. Living separately under that agreement for one year used to be the path to a "conversion divorce," but most couples today file a no-fault divorce under DRL § 170(7) instead.
• Judgment of separation is a court decree granting legal separation under DRL § 200. This is rarely used now that no-fault divorce exists, but it remains available for couples who have religious or insurance reasons not to divorce.
• Pending divorce means a Supreme Court matrimonial action has been filed, the Automatic Orders are in effect, and the parties are working toward a final judgment.

None of these statuses ends the marriage. Until a Judgment of Divorce is signed by the court and entered by the Clerk, you are still legally married. That has real implications for dating.

Dating during a pending divorce: what the other side may look for

If your divorce is already pending, the other spouse's lawyer may seek discovery about your dating life only to the extent it is relevant to the issues in the case. Relevant areas can include:

• Whether marital funds were spent on the new relationship (gifts, trips, restaurant tabs, rent paid for a new partner)
• Whether the new relationship affects the children's stability or exposes them to inappropriate situations
• Whether a new partner is contributing to household expenses in a way that may affect a maintenance analysis
• Whether assets have been transferred or hidden through a third party

Judges and lawyers see new relationships every day. The court is not there to police your personal life. The court is there to make sure marital assets are accounted for and that the children's best interests are protected.

Protecting yourself if you choose to date

• Use only your separate funds for dates, gifts, and trips. Document the source of those funds.
• Do not introduce a new partner to the children until your parenting plan is settled and your co-parent has reasonable notice, ideally through a written communication.
• Avoid posting publicly on social media about a new relationship while the case is pending. Photos and check-ins are routinely used in matrimonial litigation.
• Do not move in with a new partner before the divorce is finalized. Cohabitation can affect maintenance under DRL § 248 and can complicate child custody analysis.
• Keep your communications with your attorney candid. Your lawyer cannot protect you from facts they do not know.

If you are considering 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].