One question that clients sometimes ask us is, “What happens if my spouse is dating during divorce?” 

It’s a fair question. Until the ink dries on your order, you’re still technically married, and in many jurisdictions, infidelity can have a significant, detrimental impact on how divorce proceedings shape up—particularly when it comes to things like property division and alimony.

So, what does that mean for you? Do you need to be worried about dating during divorce in California?

We’re glad you asked. 

 

Breaking the Marriage Contract: Fault or No-Fault? 

Marriage might mean a lot of things to a lot of people, but for legal professionals it all boils down to a contract; a legally binding agreement for two adults who have decided to share their lives together. 

Divorce, then, is the opposite. It is the severing of one life into two, so to speak. When this happens, the marriage contract (which was created on your wedding day), must be broken. 

In general, there are two ways to do this: 1) No-fault Divorce, where neither party shoulders blame for the breakup; and 2) Fault Divorce, where the guilty party is held accountable for their role in the marriage’s failure. 

Back in the day, pretty much every jurisdiction required you to show proof of fault in order to get a divorce. These days, however, it’s the opposite, with every state now offering some kind of no-fault divorce grounds, and most doing away with fault, altogether. 

But how does fault apply to dating during divorce? you might be wondering. 

Because, dear reader, in some jurisdictions, dating during divorce could actually trigger a claim for fault-based divorce grounds. 

 

Dating During Divorce and Fault

Fault-based divorce grounds come in a variety of shapes and sizes, from felonies to infertility, and other things in between. However, the one thing that all fault states have on their Naughty List, is infidelity.

Infidelity (or adultery) is when two people engage in sexual relations, and at least one of them is already married… to someone else. 

In a fault-based jurisdiction, this could potentially mean the cheater gets less marital property, less alimony, and/or saddled with more than their fair share of marital debt. All of which is meant to penalize them for causing the marriage contract to fail. 

Of course, dating during divorce doesn’t always lead to sex, but it often does, and those who do are leaving themselves wide open to grounds for adultery—claims that can have some pretty catastrophic ramifications for cheaters living in a fault-based jurisdiction. 

However, luckily for cheaters in the Golden State, California is not one of those jurisdictions. 

 

California and Fault-Based Divorce

California is one of the many states that have completely done away with fault-based divorces. So, not only are you (legally) permitted to commit adultery to your heart’s content, you can also date during divorce without having to worry about putting your share of marital property in danger. (Not that we’re promoting adultery or anything, here, because obviously, that’s not cool. We’re just saying that dating isn’t likely to raise any legal red flags.)

The only way cheating might be held against you in divorce court, is if you included an infidelity clause in your prenuptial agreement. So long as the prenup is valid, the court will likely enforce whatever penalties you willingly submitted yourself to when you got married. 

That being said, even if you aren’t having sex, there are still a few things you might want to be warry of, if you’re thinking about dating during divorce.  

 

Dating During Divorce in California

Alright, so you’re legally permitted to commit adultery in California. Cool. So, does that mean dating before everything is official never impacts a divorce’s outcome? 

Not exactly. 

While California courts won’t consider fault—and, by extension, infidelity—when dividing up assets, there are a few things you might want to remember, before powering up your Tinder profile… 

 

1. Marital Money Doesn’t Belong to You, Alone

California courts might not penalize you for having an affair, but that doesn’t mean you’re free to spend marital assets on your new squeeze. 

California is a community property state, which means anything that either of you acquire after marriage, belongs to both of you equally—no matter whose name is on that paycheck. This means that if your divorce isn’t finalized yet, you’re not just spending your money on your dates. You’re spending your spouse’s money, too. (Awkward.)

Hence, your judge will likely require you to reimburse whatever money you spent on dates before divvying up marital property. And, depending on how discreet you were (and how long you were dating before divorce), this could end up being a lot. 

 

2. Don’t Neglect Your Children

Just like dating won’t directly affect marital property, neither will it directly affect your custody arrangement. However, it could have an indirect effect… 

In California, custody decisions are made according to the best interest of the child. If you are neglecting your child in favor of your dating life, or if your dating life is exposing them to harm in some way, then the court might think twice about how large a role you should play in your child’s life, post-divorce. 

Bottom line? If dating during divorce, keep your priorities straight, and remember that being a parent comes first.

 

Dating During Divorce: Just Don’t

Like with many things in life, just because you can date during divorce, doesn’t mean you should. 

Breaking up with a spouse is extremely stressful. This is someone you once loved enough to say, “I do,” so even if you know it’s the right decision, there will still be a lot of complicated emotions clouding the waters. (Not to mention demands on your time). And those aren’t the most ideal conditions for starting a new relationship. 

Do yourself a favor, and simply don’t date during divorce. Your kids need you right now. You need you right now. Wait until everything is finalized; until you’re in the right frame of mind to give your full heart to someone new.

Trust us, you’ll be glad you did.

Divorce Attorneys in California

While dating during divorce is unlikely to have a direct impact on your breakup, it’s not necessarily the best idea—especially when kids are involved. If you have more questions about why, or want to discuss other divorce-related questions, we want to hear from you. Call the Maples team at (209) 989-4425, or get in touch online, and let us help this process run smoother for you.