Ep 9: Sex and Divorce


In today’s episode, we’re talking about sex. In the divorce world, there are usually two major categories that you find sex impacting. One is a lack of it, and one is a lack of the right kind of it. So you see a number of people who have just been living in a completely sexless marriage for years and years and years. Maybe it’s a situation where the marriage has become more like a friendship, and there’s just no more passion left between the two people. Maybe it’s a situation where there’s an emotional distance between two people, and they just are not able to connect on that intimate level anymore. Or you might have a situation where it’s just simply the lack of the right kind of sex. I’ve had many instances of cases where I had a client who left his wife because she was no longer willing to engage in threesomes with him and with other couples that they had become connected with throughout their marriage. I had another instance where a wife left her husband, and she had two very young children, but she left him because she had fallen in love with a married couple that lived in another state.

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Sex and Divorce

One of the things I do really pride myself on is not judging clients or their circumstances.

Everybody comes to the situation from a variety of different life circumstances, and I always try to really keep my poker face when I’m hearing someone’s story. But in some instances, it’s harder than others to not lose my poker face when I’m hearing the stories that people come to me with…

I have another situation where a man was leaving his marriage after 25 years to his wife, and he was leaving her to marry his best friend. Now, his best friend was a man, and again, we’re not going to have judgment on this podcast, but it can be somewhat shocking. And if it’s shocking for me to hear as the potential advocate for this person, then it’s absolutely going to be shocking for your spouse, and it’s going to be painful for your spouse.

One of the things that I think surprises many people about sex during divorce is that many couples continue to have sex with each other throughout the divorce process. This is something that I think many people find confusing. They think, well, this relationship is over why in the world are these people still having sex with each other. But you know, it’s a very confusing time for people, and they’re seeking some level of comfort, familiarity, and they’re looking to reconnect to the intimacy that they once shared. So again, there’s not going to be judgment on this podcast about the choices that people make about sex throughout their divorce and in their marriage. But if you’re still having sex with your spouse during the divorce process…nobody wants to think about the legal ramifications of that, but that’s why this podcast exists – to help you understand what the legal ramifications might be. So in some places, there’s absolutely none. In some states, no one cares that you’re still having sex with your spouse and you’re divorcing your spouse – the courts don’t want to get into it. It’s not going to impact whether or not you can get divorced in the first place, and it’s not going to impact whether or not the process is going to take longer. 

In other states, however, there are different consequences. In many states, you’re required to be separated from your spouse for one year before the court will enter your divorce. The court does not consider it to be a separation if there are still sexual relations going on in the marriage. So in some states, if you have to attest that you’ve been separated from your spouse for a year to get divorced, that means that you essentially have to attest that you haven’t been having sex with your spouse for a year in order to get divorced. And in some states, if you can’t attest to that, it’s going to have to start the clock ticking again. So if you’re the one who’s really interested in moving forward with your life, then be aware that in some places, continuing these relations with your spouse can actually delay your ability to get divorced and move on.

In other states, it’s required that you show that you have irreconcilable differences. And that’s sort of a legal term of art that basically means there’s been a breakdown of your marriage and you can’t make it work, and so the law should grant you a divorce. In those states that use the term of irreconcilable differences, many times a judge will not consider it to be irreconcilable if you’re still having sex together. So the law will presume that there must be something salvageable about your relationship if you’re able to maintain that level of intimacy.

So if your sexual relationship remains intact, it may delay your ability to move on from your spouse, and we could have a social debate about those laws and the basis for them and whether or not they make sense – and that could be probably the subject of a whole other episode – but for today’s purposes, you should just be aware of these circumstances.

You may particularly want to be aware of this if you’re the one that wants to move on as soon as possible. Continuing to indulge in sex with your spouse, while also divorcing them, could delay the proceedings, so you don’t want to be tricked into that. I would just add as a note, it could be harder for you to move on, frankly, from an emotional perspective, if you’re still maintaining that connection with your spouse while at the same time trying to be divorced from them. It can just be something that makes it much harder for you to get past and harder for you to get to the point where you feel comfortable moving on intimately with a new partner. So that’s obviously something that you’d want to cover with your therapist, but it’s important to note that it can really delay your ability to heal if your relationship with your spouse is still sexual in nature throughout the course of the divorce. 

So the next topic that I want to make sure we cover is sex with your lover.

Many people are cheating. They’re cheating on their spouse and many people get away with it all the time, but lots of times and more often than not your spouse finds out about it – and there are consequences. There’s no judgment here in terms of the choices that you’re making about what to do in your own marriage. We’re not trying to encourage affairs, we’re not trying to discourage them. We’re being neutral. But we are going to make you aware of the pitfalls that you may face if this is the course that you’re choosing. 

So the first and most obvious one is that your spouse is probably going to be very bitter, and your spouse is probably going to go out of his or her way to make your life absolutely miserable. We cover this in one of our other episodes – the extent of a spouse’s vindictiveness – that you should probably also listen to if you’re either thinking about having an affair or if you’ve recently been caught having one. The second thing to know is that you may actually be committing a crime. In several states, adultery is still a crime on the books. 

Adultery is sex with any person other than your spouse, and it’s actually against the law. Now, many people don’t think of it as being against the law, because it’s a very common thing that happens, and it’s not something that’s very often enforced. Prosecutors don’t tend to spend a lot of time focusing on prosecuting people who are having affairs in this day and age, but it can definitely impact your divorce process in other ways. So let’s talk about that for a second. 

So while on the one hand, the crime of adultery is not necessarily something that is prosecuted anymore, it definitely has legal consequences in the context of your divorce proceeding.

Another example here is I had a situation where I had a client who was having an affair with his business partner. He and his business partner had engaged in a new venture, and they had committed a bunch of money together to this new venture.

He had used marital assets to put towards the new business venture, and it turned out that the person that he was in this new business venture with was the longtime person that he was having an affair with. When we had our initial consultation, he was shocked to learn that it was possible that throughout the divorce process, that the money that he had committed to this new business endeavor was going to be something that his spouse could find out about. So just be very aware of what you’re doing and how you’re doing it and think about whether you would want to have to answer questions about it under oath throughout the process. But just be aware of how an affair can trip you up throughout the process.  

The other impact that this can have is it could impact whether or not you have to pay spousal support and how much. In many states, there are a number of different factors that are looked at in terms of whether or not you have to pay spousal support to your spouse. One of the factors is often your moral and ethical character. Obviously, having an affair goes toward your moral and ethical character, so that’s something that some courts will be taking into consideration when they’re deciding whether and how much spousal support you should have to pay. It can also impact property division. Generally, if you’re in a state where they’re looking at an equitable division of property rather than a straight line equal division, it’s certainly possible that conduct during the marriage and conduct concerning the breakdown of the marriage can factor into how the property is divided – and what the court will consider is fair.

Another thing to think about is how this may impact child custody.

So you may be thinking, well, this doesn’t have anything to do with child custody, like my kids don’t know I’m doing this, I have kept this completely separate from them. It’s not like I’ve introduced my kids to my lover, and that may be the case, but it can impact your child custody arrangement. And the way that it may impact that is, many courts will look at a variety of factors in determining who should have custody and who should have parenting time with the kids and who should have how much parenting time with the kids. Much like in the spousal support context, one of the factors that the court is going to look at is what is in the children’s best interest. One of the things they’re going to consider in looking at in the children’s best interest is the moral and ethical character of the party, and it’s going to bear at least in part on how the court views custody and parenting time decisions. So it’s just something that you should be aware of as a potential consequence of your actions. 

Another thing to be aware of is that any money that you spend on your affair is money that your spouse is going to be entitled to claim. So if you went on a bunch of vacations with this person, or you spent many nights at an expensive or even an inexpensive hotel, or you bought your lover jewelry, or an expensive necklace, or you bought him a watch or an expensive money clip, or even not an expensive gift – whatever money, time, resources you have spent on this person is going to be something that the spouse that you’re divorcing is going to be able to bring up and get some type of an offset or a credit for. So you should not be taken by surprise when it comes to that and you should, really think about the impact and how much of your marital money you’re spending on this person because it will end up costing you. 

Apart from having an affair that may cause the breakdown of your marriage in the first place. Sometimes the marriage is already broken down, you guys have already decided you’re getting divorced. Let’s say the divorce is in process, and then you meet somebody new. So it’s not that you’re cheating and that caused the breakdown of the marriage, but you’ve met somebody new, and you’re being with someone new. You need to think about how that’s going to impact the divorce process as well. It may not directly impact the equities of property division that we talked about, because if you’ve met this person after you’ve already started the process, and after the marital relationship has already broken down, then it may not impact the spousal support or the child custody arrangements. However, it can impact things like the budget factor, the vindictiveness factor, money that you’re spending on this person, or with this person can also be something that your current spouse may have a claim to. And in certain jurisdictions, it is still a crime – even though you may not be living in a traditional marriage anymore with your spouse, or you’re no longer living as husband and wife until you’re divorced it’s still adultery and it could still be used against you in certain ways.

So you should be mindful of that.

And the other thing I would say is, do not go out of your way to introduce this person to your kids. One of the biggest mistakes I see people make is they’re in the middle of a divorce. Their kids are dealing with it, their kids are absorbing it, they’re trying to think like okay, now I have to go back and forth between these two different houses. And how am I going to manage all this and how am I going to deal with my sports and my dance and all these things that are important to me and I have to worry about having my stuff at both houses. And then selfishly, one of the parents decides to make it even more complicated for the kids by saying, Oh, hey, and by the way, you know, even though you’re dealing with all these other changes, on Friday night, I’ve got a special guest that’s coming over to dinner. And people introduce their kids to these new partners way too soon, in a way that your kids are just not ready for it. So I think it’s really important to just give your kids some space, make sure that they’re settled, they’re ready and used to this new situation before you just automatically introduced them to this new person in your life. It’s great for you that you’re moving on, and you’re able to heal and that’s great. And that’s going to have tangible benefits for your kids, but to bring that new person into your kid’s life early on, can be really difficult for them and really painful. So it’s something that you really need to think about.

So that’s it for today’s episode. Until next time, be kind and be true to yourself.

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