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 states that awards are made “without regard to marital misconduct.” So dating or having an affair does not have legal consequences on the financial outcome of the case.
Why is your advice different than what the law provides?
About 95% of divorce cases are settled by agreement of the parties. These cases do not go to trial before a judge. Instead the parties usually come to a settlement agreement (called a marital settlement agreement or MSA) that results in what in turn is called a “prove-up.” Yet when a spouse suspects or knows of infidelity, the “innocent” spouse might wants 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 might double or triple (or worse).
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 wages) 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–in a sense–into the marital pot for division between the parties. Assume a husband who takes his girlfriend on a $10,000 vacation to Hawaii. This is dissipation. He has to pay it back. 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. There are 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 extoll 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 equal abuse. The 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 Emails can 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.
