Adultery: when is it OK to date during a divorce proceeding?

Many times in recent weeks, I have been asked by various clients (men and women), when is it ok to date during the separation and divorce process.  The short answer is that dating leads to sexual activity and that sexual intercourse with a person other than one’s spouse is how adultery is defined in South Carolina. Adultery is typically proven by evidence of opportunity and inclination.


Does it really matter?  Yes and no.


If the person asking the question wants to err on the side of caution, the answer is to refrain from any activity with the opposite sex until the divorce is over.  If the person is seeking alimony, they most certainly want to wait until the divorce is over, as adultery is an absolute bar to alimony in South Carolina.  If the person asking is the one who is paying or who is going to pay the alimony, the adultery is not as significant, but arguably can have an effect on the amount of alimony that is ordered.  The judge may view the dating relationship as taking funds and resources from marital obligations, before the marriage is over.  Different judges view adultery differently.  There is no way to know which judge will preside until the case is set for Court, which can take many months.


Marital fault of any kind is a factor in both alimony and property division.  “Flagrant promiscuity” is a factor in custody cases.  So the shortest, safest answer to the question “when can I date?” is “after the divorce is over.”  Many clients do not want to hear that and in some regards, their sexual appetite causes them to be their own worst enemy in divorce court.   Anyone considering dating or having a sexual relationship during a divorce action should proceed with great caution and only after consulting with an experienced family court attorney.


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