Kelly Moore: Can You Date During Legal Separation?

A legal separation in Utah is called “separate maintenance – a court will detail the monetary support guidelines and child custody issues and the division of marital property. Couples hoping for a reconciliation may prefer this form of separation to divorce.

Utah requires married couples with children under the age of 18 to attend classes to educate themselves on divorce, and couples with no children must still undergo a 90-day waiting period. Moreover, married couples filing for divorce must also attend a mediation session to resolve remaining disputes before going to trial. Filing for legal separation circumvents the class requirements and the 30-day waiting period in Utah.

Parties are legally separated only when a court enters a decree of separate maintenance. To obtain a decree of separate maintenance in Utah, the parties go through an action like a divorce. Separate maintenance divides property, awards custody of children, and provides for child support and alimony, but does so on a temporary basis; the decree of separate maintenance does not end the marriage. Alimony under separate maintenance is more common than under a divorce decree because the parties are still married, and the law requires spouses to support one another.

Once the separation occurs, the separated couple may file for a divorce, which is independent of the legal separation. Court and attorney fees for legal separation and divorce are equal, but couples seeking a divorce after a separation will end up paying the same amount twice. Couples seeking legal separation must resolve issues similar to that of divorce, including child custody and visitation, dividing up property and child support, and paying debts.

What is the law regarding dating when legally separated?

I am filing for my legal separation. What are the laws about dating again in Utah? 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.

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 pendent lite shall be made according to the principles controlling such allowance and actions for divorce. 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.

I’m not Divorced yet, But I’m Dating; Will that Hurt my Divorce?

When people don’t, they’re said to be “stuck in the past,” or “they can’t get over their ex.”

And we should move on from divorce. While it’s healthy to mourn the loss of your closest relationship, you have to put things behind you at some point to grow and move ahead.

So, how quickly should you move on? More specifically, when should you start dating?

To answer these questions, let’s imagine you’re getting divorced but still married, and you’re already dating. Will that hurt your divorce?
Let’s look at this from a couple different angles.

Angle 1: No Kids

If you have no kids, then dating after separation but before your divorce is signed probably won’t hurt you.

If all you’re doing is dividing up debt and assets (e.g., the home, personal property, etc.), then things are usually pretty straightforward. The reason for the divorce rarely plays a role in determining who gets how much of the 401(k), or who takes what percentage of the Visa card.
I say this, but there are a couple caveats:

Emotions can make everything more difficult.

While the math might be pretty straightforward, emotions can cause people to fight because they’re hurt. Even though they don’t have a leg to stand on, hurt will cause some to want to punish their soon-to-be ex in the form of taking more money. Math is easy; wrath is not.

In some situations, adultery can affect alimony.

There are times under Utah law that adultery can affect alimony. These situations are few and far between in my experience, especially if the adultery happened after separation, but it’s something to keep in mind and to be cautious about.

Angle 2: Yes Kids

Kids complicate everything, especially in divorce.

That emotion that had the potential to complicate asset and debt division, but probably wouldn’t, that emotion will almost certainly complicate your divorce if you are fighting about custody and parent-time.
Your soon-to-be ex will distrust the new person you’re dating. They may hate that person simply because you’re dating them. They may blame the marriage breakup on that person, even if that has nothing to do with reality.

Because of this, the new person you’re dating will likely make coming to a resolution of the divorce more difficult.

Let me give you a couple specific examples of what I mean by more complicated:

1. We’ve had spouses negotiate terms that the kids cannot be introduced to anyone the other person dates for at least six months.

2. We’ve had spouses negotiate terms prohibiting the kids from being alone with the other person’s dating partner because the dating partner was an “unknown” and a “safety risk.”

3. We’ve had spouses negotiate terms that the kids can’t be left alone with the other person’s dating partner, even if the other person marries the dating partner.

4. We’ve spent more time than I care to admit negotiating terms that preclude new dating partners and new spouses from ever disciplining the spouses’ children.

And that’s just a preview of how new dating partners have made things difficult.

What’s the Difference between Legal Separation and Divorce?

Sometimes, no matter how hard you try, marriages fail. We’ve all heard of divorce, which is the process couples use to end their marriage legally. Divorce begins when one spouse files a motion (request) with the court. Typically, couples can negotiate the terms for their divorce, including child custody and visitation, child support, property division, and spousal support. If you’ve agreed to most of the conditions, but still have disputes about others, you can ask the court to decide for you. Once the judge finalizes your divorce, both you and your spouse are free to remarry, acquire property, and relocate as single people.

The process for legal separation in many states is nearly identical to divorce, but there’s one critical difference: legal separation doesn’t terminate your marriage. Although you (or the judge) decide the same divorce-related issues, and once the judge grants your request you’re both free to live independent lives, if either spouse wants to remarry in the future, that spouse must ask the court for a formal divorce, first.
Both legal procedures are similar in cost and time commitment; however, if you pursue legal separation before a divorce, you’ll likely be paying twice.

Should I Choose Legal Separation Instead of Divorce?

Much like the decision to get married, the choice of whether to pursue a legal separation or divorce is intensely personal. If you’re not sure if you want a divorce, legal separation might be the most appropriate way to give you time apart while you try to repair the relationship.

Many couples decide to legally separate to continue employer-sponsored health care for a spouse. If you get divorced, it will likely trigger your health insurance to cancel your spouse’s benefits, and in a country where one medical emergency can bankrupt a family, sometimes it’s easier to stay married.

Although there’s no right or wrong reason to pursue legal separation instead of divorce, some of the most common include using separation:

• as a dry-run for divorce

• to preserve valuable tax benefits or other federal benefits

• to promote stability for minor children while given each spouse freedom to move away from the relationship, or

• To overcome religious, social, or moral objections to divorce.

Does Utah Recognize Legal Separation?

Yes, but in Utah, it’s called an action for “separate maintenance.” The process begins when either spouse files a petition for separate maintenance with the local court. You will need to demonstrate that you or your spouse meet the state’s residency requirement, meaning at least one of you lived in Utah for a minimum of 90 days before filing. (U.C.A. 1953 §30-3-4.5.)

Because the process for separate maintenance is nearly identical to divorce, you must also provide the court with a legal reason—or, grounds—for your request. Utah is a mixed divorce state, meaning you can ask for separate maintenance based on your spouse’s marital misconduct (domestic violence, desertion), or you can save time and money by requesting a no-fault separation, and state that your relationship has suffered irreconcilable differences. (U.C.A. 1953 § 30-4-1.)

Utah law requires the judge to wait for a minimum of 30 days (90 days if you filed before May 8, 2018) before acting on your case. The court may waive the waiting period if a judge finds that there are extraordinary circumstances, but this is rare. If you have minor children, you must attend divorce orientation and divorce education classes before the judge can grant your request. Most couples can fulfill this requirement during the waiting period. (U.C.A. 1953 § 30-3-18.)

If you don’t have minor children, you can use the waiting period to negotiate the terms of your separation. You should determine the best parenting plan for your family, how you will handle property and debt division, and resolve any issues about child or spousal support.
If there are outstanding issues in your case, the court requires both parties to attend at least one mediation session before the judge hears your case. Mediation is a way for both spouses to discuss their concerns with a trained, neutral third-party, in a safe and controlled environment. The purpose of mediation is to reduce the time and tension commonly associated with divorce or separate maintenance. (U.C.A. §30-3-39.)

If either spouse wishes to convert the separation into divorce later, that spouse can file a motion with the court. Your spouse can object, and if so, you’ll need to go to court and demonstrate that you meet the guidelines for divorce. If you do, the court will approve your request.

What If We Aren’t Sure That Legal Separation Is Right for Us?

You can participate in a trial separation, which is where you live apart for a specific time and reassess your marriage. Most couples can orally agree to the terms of the trial, and it’s usually the best way to find out if separation or divorce is right for you. The court doesn’t monitor trial separations, so if either spouse doesn’t want to participate, that spouse can file a formal petition with the court for separate maintenance or divorce.

And then there are people who bring the new love interest to mediation. Good heavens, you have never seen people shut down out of anger until you have one spouse bring the new lover to mediation.

My recommendation is this: hold off on dating until you’re done with your divorce. It makes everything so much easier. It removes negative emotions from the equation that do nothing but make the process harder. Just wait.

Legal Separation Lawyer Free Consultation

When you need to get a legal separation or divorce in Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help with: Divorce. Child Custody. Child Support. Alimony. Divorce Modification. Paternity Actions. And Much More. We will help you.