The advice from most divorce lawyers: wait until the divorce is official for dating. Dating during a divorce (if it is discovered) often creates more expense.
Doesn’t the law, in effect, state there is no legal consequence if I date during the divorce case?
Yes.
Illinois law regarding child support, maintenance (alimony), and property division state that these awards are to be made “without regard to marital misconduct.” So dating, or for that matter, having an affair, does not have any legal consequences on the financial outcome of the case.
Why is your advice different than what the law states?
About 95% of divorce cases are settled by agreement of the parties (usually negotiated by their attorneys). These cases do not go to trial before a judge, but result in an agreed-upon “prove-up.” Yet when a spouse suspects or knows of infidelity, the “innocent” spouse often wants to get even. Settlement negotiations become more difficult. Often when infidelity is involved or suspected and negotiations become more difficult, the attorney fees for the divorce might double or triple what they would otherwise be.
But would it matter if he is spending money on his girlfriend?
Yes.
In Illinois there is “dissipation” rule. If a spouse spends marital funds (including pay) for a non-marital purpose when there are irreconcilable differences in the marriage, this is “dissipation.” The spouse “spending” or dissipating the funds must put them back–as it were–into the marital pot for division between the parties. For example, assume a husband who takes his girlfriend on a $10,000 vacation to Hawaii. This is dissipation. He has to pay it back.
May the dating/infidelity “unofficially” impact on the financial aspects of the divorce case?
Not with most judges.
If the case goes to trial, in most instances the judge will not consider evidence of infidelity in making the financial awards in the case, with the exception of dissipation.
May infidelity impact on whether I obtain custody or a more favorable award of parenting time?
Not the infidelity alone.
Illinois law provides that the judge should not consider the conduct of a parent that “does not affect his (or her) relationship to the child.” So a discreet affair, which does not result in any impact on the children, should have no impact on the court’s award if matters are contested. Yet one should be careful with introducing the children to a significant other during the midst of the divorce. It may impact the children’s wishes. This, among others is considered in parental allocation cases.
If I suspect my spouse of infidelity should I hire an investigator?
No, not usually.
Investigators are expensive, and especially if you do not know approximately when and where the misconduct will take place. In “child custody” cases, there are times when parental misconduct may impact on the child and thus may make a difference. Even in those cases a spouse should have the lawyer retain the investigator and keep the investigator on a short leash.
Other than say credit card bills, where I can look to determine if there is infidelity?
After years of observing, I believe that some of the people involved in extramarital relationships unconsciously wish to be caught. They leave evidence often easily found. In many cases this has been discovered because of social media posts or through texts on a cell phone that are seen by the spouse. We are seeing more and more cases where one learns of an “online” relationship. Brief cases, car trunks, and ceiling tiles are favorite hiding places in the physical world. In the digital realm, one’s deleted Emails, dating websites, etc., are also often viewed by spouses. For better or worse: There is even an industry that is devoted to helping people hide evidence of an affair.
