Many people don’t wait for the divorce process to officially end before dating. The wisdom of dating during a divorce in Illinois is debatable. If you or your spouse are actively dating other people while unwinding your relationship through an Illinois divorce there are things both parties to an Illinois divorce need to know.
Is Dating Allowed During An Illinois Divorce
Everyone knows that dating is allowed during a divorce…but it’s sometimes frowned upon as being a distraction or impediment to the productive unwinding of a marriage.
However (and bizarrely), dating while married is technically a crime in Illinois…if the married person is having “open and notorious” sex with the person they’re dating.
“A person commits adultery when he or she has sexual intercourse with another not his or her spouse, if the behavior is open and notorious, and
(1) The person is married and knows the other person involved in such intercourse is not his spouse; or
(2) The person is not married and knows that the other person involved in such intercourse is married.” 720 ILCS 5/11-35
How do you prove “open and notorious”? You probably can’t. You’d need a third party to testify that they saw the couple having sex out in the open.
The United States Supreme Court has already ruled that Americans can do what they want in the privacy of their own bedroom, Lawrence v. Texas, 539 U.S. 558 (2003). So, don’t expect the crime of adultery to ever be prosecuted in Illinois.
Dating And Dissipation Of Assets
In Illinois, you are married until you are divorced. That means that any money spent on a date is probably marital money.
Dissipation is defined as the use of marital property for one spouse’s benefit for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown” In Re Marriage of Tietz, 605 NE 2d 670 Ill Appellate Court, 4th Dist. 1992.
Spending money on a romantic interest that is not a person’s husband or wife is the very definition of “purpose unrelated to the marriage.”
These obvious non-marital expenses can include: restaurant meals, hotel stays, trips, jewelry, lingerie, plastic surgery and Viagra prescriptions,
The other spouse has the option of filing a notice of intent to claim dissipation of assets.
Once the notice of intent to claim dissipation of assets is filed, the alleged dissipater has the burden of proving that he or she did not in fact spend the money on a boyfriend or girlfriend. In re Marriage of Toole, 273 Ill. App. 3d 607 (2nd Dist. 2005)
Proving that something did NOT happen is called “proving a nullity” and it is a herculean task. In Illinois, testimony alone is usually still not enough to prove that the spent money was not dissipation. “If expenditures are not documented adequately by the person charged with dissipation, the courts will affirm a finding of dissipation.” In Re Marriage of Tietz, 605 NE 2d 670 Ill Appellate Court, 4th Dist. 1992.
So, once accused of dissipating assets because of dating in Illinois, the accused dissipater must prove what money was, in fact, spent on the dates. This is awkward at best and cumbersome at worst.
Upon establishing the dissipation of marital assets, the dissipated amount is divided in two and the other spouse’s half is added back into their share of the marital estate.
For example, Fred and Wilma are getting divorced in Illinois. if Fred was found to have spent $ 1000 on his new girlfriend and Fred and Wilma have $10,000 of marital assets, then Wilma will be awarded $ 5500 of the $ 10,000 of marital assets in the divorce.
Dating and Alimony During An Illinois Divorce
The lesser earning spouse can request maintenance (formerly known as alimony) from the greater earning spouse during the divorce through a motion for temporary maintenance.
If a spouse is awarded temporary maintenance and subsequently moves in with a boyfriend or girlfriend “the obligation to pay future maintenance is terminated…if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis.” 750 ILCS 510(c)
Maintenance can be terminated permanently due to cohabitation even before the couple is actually divorced. Marriage of Toole, In re, 653 N.E.2d 456, 273 Ill.App.3d 607 (Ill. App. 1995)
Dating is not cohabitation for the purposes of terminating maintenance in Illinois, though. “[A}n intimate dating relationship is not a de facto marriage and, therefore, is not a ground upon which to terminate maintenance” In re Marriage of Bates, 212 Ill. 2d 489, 524 (2004).
Proving cohabitation in order to terminate maintenance requires a totality of the circumstances test to look for a marriage-like relationship. “Courts should look for signs of mutual commitment and permanence….[C]ourts must also look to the totality of the circumstances to determine whether the new relationship functions practically and economically in a marriage-like way and, if not, whether there is a reasonable explanation as to why it does not (such as each partner’s having an individual abundance of resources or estate-planning goals).” Miller v. Miller, 2015 IL App (2d) 140530 (Ill. App. 2015)
Unless, the divorce proceedings have been going on for years with the spouse and boyfriend/girlfriend sharing an address and expenses, it will be very difficult to terminate maintenance during a divorce.
Dating During Divorce And Children
One of the biggest impacts dating has on an Illinois divorce is how the children of the married person react to their parent dating.
The mere fact that a parent is dating will not be considered as a reason to limit a parent’s parenting time with their children.
In allocating parenting time, the court shall not consider conduct of a parent that does not affect that parent’s relationship to the child.” 750 ILCS 5/602.7(c)
For cases of married people with children, “[i]t is presumed both parents are fit” 750 ILCS 5/602.7(b).
That means that the presumption is that married parents make good decisions in the best interests of their children. That decision may include introducing children to a person they’re dating.
In my experience, introduction of a new partner to children is not to be taken lightly by an Illinois divorce court but that introduction is also not the end of the world.
The party to a divorce wishing to delay the introduction of a new partner can point to this Illinois statute:
“There is a rebuttable presumption that a fit parent’s actions and decisions regarding grandparent, great-grandparent, sibling, or step-parent visitation are not harmful to the child’s mental, physical, or emotional health.” 750 ILCS 5/602.9(b)(4)
The Illinois legislature contemplates children spending time with third parties who are relatives but the statute specifically left out non-relatives.
A person who is merely dating a parent is not a step-parent. “[S]tep-parent” means a person married to a child’s parent, including a person married to the child’s parent immediately prior to the parent’s death” 750 ILCS 5/602.9(a)(3)
So, if introducing a new partner to children is not allowed by the Illinois statute, you can argue to an Illinois divorce judge that introducing a new partner to children is probably forbidden…or at least needs permission from the court.
If a parent does introduce a person they are dating to children without the court’s permission, the other parent has the right to ask the court to restrict any future contact with the new person or, possibly, even the parent.
“After a hearing, if the court finds by a preponderance of the evidence that a parent engaged in any conduct that seriously endangered the child’s mental, moral, or physical health or that significantly impaired the child’s emotional development, the court shall enter orders as necessary to protect the child. Such orders may include;
…
restricting the presence of specific persons while a parent is exercising parenting time with the child.” 750 ILCS 5/603.10
In reality, most issues regarding parenting time and dating are delicately (or not-so-delicately) handled by a Guardian Ad Litem who is a representative of the child’s best interests.
If children are likely to experience some kind of trauma from being introduced or spending time with a parent’s boyfriend or girlfriend “[t]he court may order individual counseling for the child, family counseling for one or more of the parties and the child, or parental education for one or more of the parties”750 ILCS 5/607.6
Be advised that attempts to prevent children from spending time with a parent’s boyfriend or girlfriend can, at the extreme, be seen as attempts to prevent the children from seeing the other parent, also known as “parental alienation.” The court will consider “the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child” 750 ILCS 5/602.5(11) when finally allocating parenting time.
How Do I Keep My Spouse From Introducing Their Girlfriend or Boyfriend To My Children?
You can’t really force this issue with an Illinois divorce judge. As you’ve read above, a parent doesn’t have a legal right to introduce a girlfriend or boyfriend to a child and the other parent doesn’t have a presumptive right to prevent that introduction.
Most parents aren’t really concerned about a single girlfriend or boyfriend meeting the children. Rather, parents are concerned that a parade of different women or men will enter and leave their children’s lives. This is not good relationship modeling for the children.
The way to prevent numerous girlfriends and boyfriends confusing your children is to ask for a paramour clause in your Allocation of Parenting Time and Parenting Responsibilities.
A paramour clause typically says that each parent must wait X months to introduce children to a new boyfriend or girlfriend and Y months until that girlfriend or boyfriend can sleep over wherever the children are also sleeping over.
Paramour clauses are a good compromise for everyone involved: the parents, the new girlfriend/boyfriend and the kids.
In Illinois, Can You Sue The Person Your Spouse Is Dating?
No. You used to be able to sue a person who broke up your marriage for the civil action of “breaking your heart” but that is no longer available under any Illinois law.
As the old saying goes, “the best revenge is living well.”
The Upside To You Or Your Spouse Dating During Your Illinois Divorce
All of the above advice essentially repeats: don’t date during an Illinois divorce. Technically, this is good advice in regards to the Illinois legal system.
In reality, you have mental, emotional and physical needs that a partner once satisfied…otherwise you wouldn’t have gotten married. Those needs don’t just go away with time. Almost everyone starts dating again and gets remarried.
A new partner can help get you through a difficult divorce. So, I don’t begrudge anyone who dates during a divorce.
Alternatively, your spouse dating may be the best thing that ever happened to your divorce. No one wants your spouse to get divorced faster than the person they are dating. This person will actively encourage your spouse to settle and concede on issues to hurry along your Illinois divorce.
If you’re dating someone during your Illinois divorce or your spouse is dating someone during your Illinois divorce and you’d like to discuss how this will affect your ongoing divorce case, contact my Chicago, Illinois family law firm to schedule a free consultation.
