There are two ways to ask this question: Can I start dating while my divorce case is pending? and Should I start dating while my divorce case is pending?

If you ask five different attorneys whether you should start dating during a divorce, you will probably get five different answers but here is ours:

From a technical legal standpoint, adultery in Massachusetts is still a crime. Although it is almost never prosecuted it is important to note that if you engage in an intimate relationship while still married you are technically violating Massachusetts law and this could be brought up in your divorce case.

From a more practical standpoint, as many of my clients have heard, I have a saying that goes "Don't live your life for your divorce case." By that I mean that you have to still live your life and make choices that are good for you, and not just good for your divorce case. But you also have to recognize that choices have consequences.

In this instance if you have met someone who truly makes your life better, I don't believe it is my place as your attorney to tell you that you shouldn't pursue that relationship. However, you should be aware of the potential consequences so that you can make an informed decision about whether it would be more prudent to wait until the divorce process is over.

You can minimize the potential consequences through the use of common sense. For example, one possible consequence of starting a relationship is the emotional impact on your spouse. As discussed in a previous post, the discovery of an extra-marital relationship can cause some people to become very upset, becoming more difficult to deal with and sometimes even impossible to settle with. You can mitigate this possibility by being discreet, and not rubbing the new relationship in your spouse's face (for instance by bringing the new significant other to court with you).

Another example relates to the finances. Any funds spent with or for a dating relationship during a divorce process could be seen as wasting of marital assets and will likely become an issue in the division of assets. Similarly if support is an issue any funds that can be spent on a dating relationship could arguably be available for support of your former spouse. You can minimize this issue by not spending any money on the new relationship until after the divorce is final.

Finally, if you have children, whether or not you choose to start a new relationship during the divorce process or afterwards you should give special consideration to how this will affect your children. It is universally accepted that introducing anyone new to your children at the early stages of a relationship is not healthy for the children, especially if the likelihood is that many such relationships will not work out. In addition, trying to introduce anyone to the children (even someone you are serious about) during the divorce process can be traumatic because the children are already dealing with a significant transition in their lives. If you are not sure the best way to handle introducing children to a significant other when they become significant, you should consult with a trained professional such as a psychologist or psychiatrist.

I was recently directed to two articles involving Husbands, one in Germany, and another in Cambodia, that, as part of their divorce, took their half of their marital homes, literally. Not by selling and getting their share of the equity, and not by buying their Wife out of her share, they literally cut the house in half.

Don't get any ideas if you're getting divorced in Massachusetts, though.

In Massachusetts the Court is directed by M.G.L. c. 208 § 34 to divide the assets of the parties and award support based on numerous factors including the length of the marriage, health of the parties, age of the parties, income of the parties, opportunity for future acquisition of assets and income, and more.

When considering all of these factors, we often discover that an equal division of the assets, i.e. a 50/50 division, is the equitable and fair resolution. However, there are also cases where the totality of the circumstances require an unequal division. You won't find Judge Solomon in a Massachusetts' Court, though you might still find some wisdom.

P.S. Don't think it only happens in other countries. This couple in New York built a wall down the middle of their house.

Thanks to Michael Paonessa for sending us these articles.

In many divorce cases, the initial fight is over who will leave the house. In cases where the parties own the home, the first person to leave is often very concerned that the spouse remaining behind will have a financial advantage. While there are some potential financial advantages to the party that remains behind, in most cases they are minimal when compared to the quality of life improvement one experiences by leaving a stressful living situation.

The potential financial advantage is primarily the use of the house during the pendency of the divorce action, which may have some financial benefit depending on how the bills of the house are split during the separation. There is also the immediate expenses for moving and replacing any furniture or other necessities, but unless one party buys the other out from the house both will eventually have this cost.

There are potential problems with one party controlling the property, for instance they can make it more difficult to show to potential buyers or fail to perform necessary repairs and upkeep. If you believe these are a serious risk, you may want to agree to orders on these issues before leaving the house. A solid written agreement can prevent most of the financial problems that might arise by leaving the home before the divorce is final, or at least provide for mechanisms to compensate one party if there are issues. If you are unsure of what you should do in your situation, you should consult with an attorney to discuss the specifics of your case.

The short answer is YES! Whether or not they are divided will depend on a number of factors.

For divorce purposes, Massachusetts gives very broad definition to "marital assets". Absent a pre-nuptial agreement every asset and liability owed by either party is considered by the Court in a division. The Court can consider the source of the asset but that is just one of the factors in whether or not to divide it. Under M.G.L. ch. 208 § 34, the Court can assign alimony or division of property based on the following section:

"In determining the amount of alimony, if any, to be paid, or in fixing the nature and value of the property, if any, to be so assigned, the court, after hearing the witnesses, if any, of each party, shall consider the length of the marriage, the conduct of the parties during the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. In fixing the nature and value of the property to be so assigned, the court shall also consider the present and future needs of the dependent children of the marriage. The court may also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates and the contribution of each of the parties as a homemaker to the family unit." (emphasis added)

Generally, any asset earned during the marriage will be divided 50/50. A stay at home parent's contribution as homemaker and in child-rearing is considered equal in value to the earning capacity of a working parent. A good example of this is the equal division of retirement accounts earned during the marriage.

Regarding assets earned prior to the marriage, those are more difficult to predict. The other factors, such as the length of the marriage, health of the parties, etc. can have a significant impact on whether or not these assets are divided. Generally we tell clients that in short term marriages (less than 5 years) the Court tries to put people back in the position they were in prior to the marriage (returning previously owned assets).

As marriages get longer, though, it is very typical for assets to "merge" into the fabric of the marriage. A major factor in this consideration is whether or not the asset was shared during the marriage. For instance the marital home (if purchased by one party prior to the marriage) is pretty likely to "merge" as more time goes by because both parties contribute to its "preservation and appreciation"(even if the title is not changed).

If you are concerned about keeping pre-marital assets separate you should consult with an attorney regarding the preparation of a pre-nuptial agreement prior to the marriage. If you are already married and considering a divorce, you should consult with an attorney to explain your specific circumstances before assuming property will be kept separate or merged by the Court.