The advice from most divorce lawyers it not to date while divorcing. This is because often dating makes the divorce more expensive in the long run because of a host of potential issues.
Doesn’t the law, in effect, state there is no legal consequence if I date during the divorce proceedings?
Yes. The statutes dealing with child support, maintenance (alimony) and property division state that these awards are to be made “without regard to marital misconduct,” and so, officially, 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) and the cases do not go to trial before a judge. When, however, one of the spouses suspects or knows of infidelity, the “innocent” spouse often wants to get even, so settlement negotiations become more difficult. Usually when infidelity is involved or suspected, because negotiations become much more difficult, the attorney fees for the divorce will be 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 (earned etc.) funds for a non-marital purpose when there are irreconcilable differences in the marriage, this is “dissipation,” and the spouse spending the money has to put it back into the marital pot for division between the parties. For example, the husband takes his girlfriend on vacation to Hawaii which costs $10,000, 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 the issue of dissipation.
May infidelity impact on whether I obtain custody of the children?
Generally no. Current Illinois law does not use the word custody. It now refers to how major decisions affecting the children are allocated and how parenting time is divided. The 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 the child being neglected or the child being exposed to the marital misconduct, should have no impact on the court’s award if matters are contested.
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” there are times when parental misconduct may impact on the child and thus may make a difference, but even in those cases a spouse should have the lawyer retain the investigator and keep the investigator on a short leash.
Investigators to prove grounds are a relic of the past since Illinois is now generally a “pure” no fault state.
Are there places other than the phone and credit card bills where I can look to determine if there is infidelity?
Yes. After many years of observing I believe that some of the people involved in extramarital relationships have an unconscious wish to be caught, because of where they leave evidence. In many cases this has been discovered because he left evidence in a briefcase, the trunk of his car or on social media. 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.
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