What is the law regarding dating when legally separated?

02/01/2007 - Category:Divorce - Separation Agreements - State: SC #890

Full Question:

I am filing for my legal separation. What are the laws about dating again in South Carolina? We do have 3 children and my husband is threatening me that if I start dating while we are legally separated, he is going to fight for custody.

Answer:

In all actions for separate support and maintenance, legal separation, or other marital litigation between the parties, allowances of alimony and suit money and allowances of alimony and suit money pendente lite shall be made according to the principles controlling such allowance and actions for divorce. [Based on South Carolina Code of Laws Section 20-3-140]

On the issue of whether a spouse should date after separation and before divorce, you should understand that post-separation dating can be used as evidence of adultery occurring during the marriage. If there was no illicit sexual conduct before your date of separation, then post-separation dating is not relevant to a claim for post-separation support or alimony. However, a paramour who stays overnight when your children are present can be grounds for denial of your custody or visitation. You should be forewarned that you will likely be asked under oath at a deposition or at trial about any dating or romantic relationships. To answer these questions falsely would constitute perjury. You may plead the Fifth Amendment privilege against self- incrimination under certain limited circumstances. Dating after separation and before divorce may also have a serious negative impact on the settlement negotiations between you and your spouse. At best, your infidelity can cause your spouse hurt and embarrassment. At worst, it will provoke feelings of anger and revenge, which will greatly complicate your settlement negotiations with your spouse.

Also, your spouse might file an action for “alienation of affections” or “criminal conversation” seeking substantial money damages against your paramour based upon his or her sexual intercourse with you or interference with the marital relationship between you and your spouse either before or after the date of separation and before a divorce is final. Conversely, if you spouse is engaging in extra-marital affairs, then you are the wronged spouse and are in the position of filing an alienation of affections or criminal conversation lawsuit against your spouse’s paramour. If that is the case, you are well-advised to obtain proof of his or her affair through a private detective.

South Carolina courts will decide the issue of custody based upon the best interests of the child. In determining the best interest of the child, the court must consider the child's reasonable preference for custody. The court shall place weight upon the preference based upon the child's age, experience, maturity, judgment, and ability to express a preference. Religious faith shall also be considered in determining custody. In making a decision regarding custody of a minor child, in addition to other existing factors specified by law, the court must give weight to evidence of domestic violence. In any action for divorce from the bonds of matrimony the court may at any stage of the cause, or from time to time after final judgment, make such orders touching the care, custody and maintenance of the children of the marriage and what, if any, security shall be given for the same as from the circumstances of the parties and the nature of the case and the best spiritual as well as other interests of the children may be fit, equitable and just.

In determining the best interests of the child, the court must consider the child's reasonable preference for custody. The court shall place weight upon the preference based upon the child's age, experience, maturity, judgment, and ability to express a preference. Consideration is also given to the religious faith of the child, and the evidence of physical or sexual abuse.



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02/01/2007 - Category: Separation Agreements - State: SC #890

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