As a divorce lawyer, I am often asked if a client can date while getting divorced. Of course, what the client is really asking is if the client can have sexual relations with someone who is not their spouse while getting divorced. The answer is yes but it could cause problems in the divorce.
Prior to 2018 adultery was a crime in Massachusetts. In 2018 the legislature repealed the law so it no longer has any criminal penalties. However, Massachusetts still allows divorces based on the grounds of adultery. In all of my years of practice, I have never seen a divorce on the grounds of adultery. In order to file a complaint on this grounds the complaint must include a “co-respondent” who is the paramour. However, the complaint can’t provide the name of the co-respondent. Instead the party has to file a motion to name the co-respondent. This motion is likely to be denied as soon as it is received by the court. Without naming the co-respondent they can’t prove their case.
Everybody can file for divorce based on no-fault grounds. This is easier as there is no defense to a no fault divorce. If one person wants a divorce they will get it.
That doesn’t mean that Adultery is not relevant to a divorce. Proof of Adultery can be introduced into the case as evidence of the conduct of the parties during the marriage. If the new romantic relationship started after the parties separated then the judge is unlikely to pay attention to the relationship based on adultery alone.
A judge is likely to consider a relationship with a new person when any of the following three activities occur:
- Exposing children of the marriage to the new relationship before the divorce is granted;
- Spending marital assets on the paramour; or
- Flaunting the new relationship in a way that causes intentional emotional distress to the spouse.
Custody Considerations–When children are involved, Massachusetts courts make custody decisions based on the best interests of the child. If your spouse argues that your dating life negatively affects your children — for example, by exposing them to instability or conflict — the court might scrutinize your parenting time or impose restrictions.
Marital Assets–Massachusetts courts divide marital property under the principle of equitable distribution — meaning a fair (not always equal) split. If your spouse can prove that you spent marital funds on a new partner (gifts, trips, dinners), the judge may adjust the property division to compensate your spouse. Similarly, if alimony is in play, a dating relationship could factor into the court’s assessment of your financial situation, especially if you begin cohabiting with your new partner.
Emotional effect if your spouse discovers your new relationship– If your spouse discovers the new relationship they may refuse to settle the divorce and force you to litigate everything. This can increase the cost of the divorce and the length of time it takes to finalize the divorce. Don’t have your date pick you up at your house. Don’t go to your spouse’s favorite restaurant. Be careful of social media postings that could reveal your new relationship. Keep your dating life off social media during your divorce. Ask friends not to tag you in posts that could cause trouble.
Bottom line: In Massachusetts, you can date while getting divorced, but you should do so with care. Understand the legal implications, keep your personal life private, and protect your children’s emotional well-being. With patience and smart choices, you can move forward without jeopardizing your divorce case.
