Separations are a middle ground for most Tennessee couples. This means the spouses do recognize that that marital relationship isn’t working, but they aren’t ready to terminate the marriage. Separations generally require that the spouses live apart. Tennessee may resolve some issues such as child custody and child support at the time of the legal separation. The family court may defer other issues such as property division until after the divorce.
Couples who legally separate need to understand that things they do during the separation can affect their rights in the formal divorce proceeding. One concern spouses need to consider is how dating while separated affect their legal rights and the health of their children.
The right to a Tennessee divorce
Tennessee allows couples to obtain a divorce if the spouses state they have irreconcilable differences and if they have been living apart for two years. You also must agree to property division, custody, and child support. The danger of dating while you are legally separated is that the other spouse may hold your dating relationship against you. Specifically, they may either not agree that there are irreconcilable differences. More likely, they will not agree to the division of property, to child custody, or to child support. Without an agreement on the family issues, you will need to show grounds for divorce such as adultery or cruel and inhuman treatment.
That you dated and/or had sexual relations with someone while you were still married could be considered marital misconduct. If anything, marital conduct could be used to your spouse’s advantage – not yours. It can help your spouse show they are the one who has grounds for divorce.
How dating affects your other divorce rights
Generally, marital misconduct is not considered a factor in the division of property. Still, if your spouse is upset about your dating, your spouse could make reaching a property division agreement much more difficult. Without an agreement, the division of property will need to be litigated which is expensive. Additionally, dating during marriage may raise a question that you spent marital assets on the new person in your life. If for example, you bought the woman you’re dating expensive jewelry, that purchase could become a factor.
Remember, too, that dating and marital misconduct are factors in alimony and child custody.
If the basis for divorce is irreconcilable differences (most divorces are based on this basis), then Tennessee law (Tennessee Code Ann. § 36-5-121(i), controls what factors the family judge considers when deciding whether to award alimony, the amount of alimony, and the length of the alimony. The relative fault of the parties is one of the 12 factors listed in the statute.
Tennessee law (Tennessee Code 36-6-106) considers 10 factors when deciding legal and physical custody of a child. Dating while separated can be considered one of those factors in several ways.
- As a general principle, the court will evaluate what is in the best interests of the child.
- The court will consider “the stability of the family unit of the parents or caregivers.”
- “The character and behavior of any other person who resides in or frequents the home of a parent or caregiver and the person’s interactions with the child”– can be considered. This means the person you are dating may be questioned if there is a custody dispute.
- The court will also consider “each parent or caregiver’s past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child’s parents, consistent with the best interest of the child.”
Additionally, the preferences of a child 12 years of age or older can be considered. If your child is upset that you are dating while you are still married to their mom or dad, they may indicate a preference to live with the non-dating spouse. If a younger child is upset by your dating, the judge might consider how the younger child is affected too.
Even if your dating is not legally held against you in the custody decision, the children still may be upset. It’s hard enough on children to understand a parent is dating again after a divorce. If you’re still married, it could be even harder for them.
The Law Offices of Adrian H. Altshuler has been guiding clients through the divorce process for nearly three decades. We understand your legal rights. We also review many practical issues such as your dating life. For help with all aspects of your divorce, call an experienced divorce lawyer in Franklin, Columbia or Brentwood. You can schedule an appointment by calling 615-977-9370 or complete the contact form