What is the effect of dating while going through a divorce?
In Illinois, there is a theory of dissipation. Dissipation is one of the factors the court examines when distributing the marital estate. According to countless case law precedents, dissipation is defined as an expenditure of marital funds for a purpose unrelated to the parties’ marriage after the marriage has suffered an irretrievable breakdown. A classic law school example of dissipation is a situation where one spouse withdraws $2,000.00 from the parties’ joint bank account and purchases a gift for his/her new boyfriend/girlfriend, after one of the parties has filed for a divorce. This three-part test is arguably satisfied. If there is a finding of dissipation, the court then funnels the amount of $2,000.00 back to the marital estate for reallocation. Effectively, the “victimized” spouse will share in the withdrawn funds. Typically, there is a 50/50 split of the funds.
While a claim of dissipation is important, dating another individual may have an equally profound financial effect; however, not on the distribution of the marital estate, but rather on the issue of maintenance. Let us consider a scenario where a spouse who might otherwise be entitled to maintenance (also known as alimony) based on the factors set forth in section 504 of the Illinois Marriage and Dissolution of Marriage Act, and the candidate spouse decides to move in with his/her new significant other before entry of the final divorce decree. If the presiding judge determines that this maintenance candidate resides with their new significant other on a resident, continuing, and conjugal basis, the court will not award any maintenance even before the divorce is final. Typically, the event of the spouse’s resident, continuing, and conjugal relationship triggers a termination of maintenance after the divorce; however, it may be applicable before any maintenance may be awarded.
In situations where custody or parenting time is in controversy, the role of the boyfriend/girlfriend may be prominent. In custody and visitation matters, the court has broad discretion in determining what is in the minor child’s best interest. Oftentimes, several “collateral” witnesses such as family members, friends, teachers, therapists, and the like, may be called to testify or be interviewed by court appointed personnel regarding certain aspects of one party’s relationship with the minor child. A new boyfriend or a girlfriend is certainly no exception. In a situation, where a new boyfriend may spend a significant amount of time with the minor child in question, it is entirely plausible to call this person as a witness in a custody proceeding to better ascertain the best interests of the child.
While there is no law in Illinois that prohibits divorcing spouses to date while divorcing, a spouse should be mindful of its effects during a pending divorce or custody proceeding.