Family Law Considerations for Dating Before the Divorce is Final
Charleston Family Law divorce cases can take a long time. While the legal process plods along, many people want to know when it is advisable to live (and especially to date) as if they are no longer married.
Consider the following to avoid problems from “dating too soon”.
When is a Divorce Final?
A divorce is “final” when the “Final Order and Decree of Divorce” has been signed by a Judge and filed with the Clerk of the Family Court.
Can it be final before the parties have been separated for one year?
Yes, divorces involving “marital fault” i.e. adultery, habitual drunkenness, physical cruelty, or abandonment can be finalized before the parties have lived apart for one year. Marital fault must either be admitted or proven to be used as a reason for the Court to grant a Divorce prior to one year of separation. However, for all practical purposes, proving marital fault against a spouse in the litigation process (without an admission) will likely take at least one year if not longer.
What is the difference between “dating” and adultery?
In order prove adultery, a Charleston Family Law attorney must present evidence of the opportunity and the inclination to have an adulterous relationship. As long as the “dating” does not evolve into a sexual relationship this will be difficult to prove. There is no legal prohibition to having dinner, going to a movie, taking walks, or speaking with friends during a separation.
What are the financial implications of dating/romance before a Divorce is final?
Under South Carolina law, if a married person is proven to have had a sexual relationship with someone other than their spouse, they have committed adultery. Unlike other forms of “marital fault,” proof of adultery bars the adulterous spouse from receiving alimony. South Carolina law is very clear about this. Proof of adultery (or the lack of proof) can have serious financial implications for both parties in a divorce case. The prohibition may be in force throughout the entire divorce, i.e. until the Final Order and Decree of Divorce is finalized by the Family Court.
Can the parties allow each other to date prior to finalizing their Divorce?
Yes. If, the parties have entered into a “formal …. written property or marital settlement agreement or (the) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties” no divorce on the ground of adultery can be granted. SC Code 20-3-130.
The statute further states that “…no evidence of personal conduct … may be considered … if the conduct took place subsequent to the happening of the earliest of (a) the formal signing of a written property or marital settlement agreement or (b) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties; SC Code 20-3-130.
After the parties have signed a written settlement agreement and/or it has been approved by the Family Court as a final order, no legal claims of marital fault, including adultery, can be made by a Charleston Family Law attorney or their client. This means that a romantic relationship should be avoided until a formal written agreement resolving all marital issues has been signed, at least by the divorcing parties, and, preferably, by a Judge as well.
Sometimes people try withdraw their consent to a written agreement before it has been approved by a Charleston Family Court Judge, so the best practice is to delay dating until a judge has signed the written agreement. “Dating,” even if not romantic, could have the appearance of adultery and invite a Charleston Family Law attorney to raise the issue of adultery. This almost always increases the conflict in the case, therefore “costing” the parties more money, energy and time than necessary while resolving the issues of the divorce. In our practice, we always admonish our clients to hold off on any interactions that could appear romantic until an agreement resolving all marital issues is signed by each party and by a Family Court Judge.