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 and results in a longer time to get divorced.
Doesn’t Illinois law state there is no legal consequence if I date during the divorce case?
Yes.
Illinois law regarding child support, maintenance (alimony), and property division does not consider “marital misconduct.” So, dating or having an affair doesn’t have legal consequences on the financial outcome of your case.
Why is your advice different than what the law provides?
Divorcing couples ultimately resolve over 95% by agreement. These cases do not go to trial before a judge. Instead, the parties come to a settlement agreement (called a marital settlement agreement or MSA) that results in a “prove-up.” Yet when a spouse suspects or knows of infidelity, the “innocent” spouse might want to get even. Negotiations become difficult. Where the parties might have agreed on a parenting plan, a battle over parenting time might ensue. The attorney’s fees for the overall divorce often doubles or triples (or worse).
But would it matter if he is spending money on his girlfriend?
Yes.
Illinois has a rule regarding “dissipation.” If a spouse spends marital funds (including wages) for a non-marital purpose when there are irreconcilable differences in the marriage, we call this “dissipation.” The spouse “spending” or dissipating the funds must put them back–in a sense–into the marital pot for division between the parties. Assume a husband takes his girlfriend on a $10,000 vacation to Hawaii. Illinois law considers this as dissipation. He must pay it back to the marital pot. See our Q&A regarding dissipation.
May the dating/infidelity “unofficially” impact on the financial aspects of the divorce case?
Other than dissipation, no.
If the case goes to trial, the judge should not consider evidence of infidelity in making the financial awards in the case. But consider two exceptions:
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 impact the children, shouldn’t affect the court’s award if matters are contested. Yet tread carefully before introducing the children to a significant in the midst of the divorce. It may impact the children’s wishes.
If I suspect my spouse of infidelity, should I hire an investigator?
No, not usually.
What about using a phone on a family plan or a GPS device to track my spouse’s location?
This could backfire. If trust has evaporated so that this seems necessary, a better investment of time and energy would be marital counseling. You can find a myriad of articles and websites that extol the value of discovering cheating spouses through these trackers. Yet repeated surveillance could run afoul of provisions in the Illinois Domestic Violence Act. Under that Act, harassment equals abuse. Illinois’ law presumes harassment where one “repeatedly” keeps petitioner under surveillance by “remaining present outside” the petitioners vehicle.
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. Briefcases, car trunks, and ceiling tiles are favorite hiding places in the physical world. This includes burner phones and the like. In the digital realm, one’s deleted texts and Emails can often be found. Even in the absence of a burner phone, there are private messaging apps such as Signal, Viber, and Sessions can lead to communications that can be nearly impossible to discover. For better or worse: There is even an industry that is devoted to helping people hide evidence of an affair.
