Sex during the California divorce

DATING AS A REAFFIRMATION OF SELF

One of the important functions that dating serves during the divorce process if a reaffirmation of self. When a marriage goes bad, one of the first victims is often the couple's sex life. Too many nights of no sex, no cuddling, and no kisses can be devastating to a person's self image. Inevitably, a person begins to wonder if it's him/her that's causing the problem. Have I gotten too fat? Am I unattractive? Am I just no good in bed?

For some couples, withholding sex or affection becomes a weapon, a way of punishing the other party to the marriage. And, contrary to popular myths, it's not just the woman who does that. The cold, withdrawn male is almost a cliché in marriage counseling. The man whose body may be in the bed, but who makes it clear that his heart and mind are not.

Many times in the period just preceding the divorce, you may see an almost frantic effort to rekindle the sex life. Women may invest very heavily in the Victoria's Secret catalogue. Men go on heavy duty exercise regimens. Sometimes the couples even experiment in the, "swingers," lifestyle, hoping that a little variety will bring their marriage back to life. (Almost always a decision made by the male, and almost always a bad one.)

By the time the divorce papers are filed, one or both of the parties to the marriage may be desperately starved for sex, affection, or even just pleasant company. It's a time when people tend to get new wardrobes, new hair styles, and new self-images. It can be a terribly frightening and exciting time. For the first time in years, you're back on the market, a single person who can go out with other single people and freely explore your emotions and sexuality. But should you?

USING COMMON SENSE

All too often, a person waiting for a divorce goes out on a date and his/her spouse seems to know about it immediately. That may just be that strange magic that married people have - if your spouse is running around on you, alarm bells start going off in your head before you even know why. That doesn't stop just because two people are separated.

Other things that don't stop are jealousy and possessiveness. You may be having a very civilized divorce. You may have mutually decided that it's best for both parties to move on. But that doesn't mean that your spouse is going to be happy to see you with another person. Many a friendly divorce has turned ugly because the husband or wife went out on a date and ran in to the other party.

In some cases, there is actually a desire for the spouse to find out. It's not just a matter of reaffirming you self-worth or your sexuality, it's wanting your spouse to KNOW that other people find you interesting and sexy. And it's almost always a lousy idea.

If you're going to date while you're waiting for the divorce to be final, DON'T go out to places that you and your spouse used to frequent. If you do, you WILL run in to your spouse or his/her best friend or his/her sister. If at all possible, go to a different city or even a different county to do your partying. If you can't, at least go to different restaurants and bars.

If you're going to go to bed with someone new, DON'T bring them home to your house to spend the night. (If you do, your spouse is almost guaranteed to drop by unexpectedly.) Go your lover's house, have your fun, and then go home for the night. Alone.

Basically, it boils down to using a little common sense and being a decent person. You may have a desire to make your spouse jealous, to get back at him/her for all of those sexless nights, to flaunt your new lovers in his/her face. At the end of the day, though, it's just asking for trouble. Better to play it cool until the 6 months is over and the divorce is final.

WHAT TYPE OF DIVORCE ARE YOU GOING THROUGH?

One of the most important questions to ask yourself before you start dating is what type of divorce you're involved in. If, for instance, you and your spouse were married for a very brief period of time and there's no property or children involved, then you can pretty much do as you like. California is a no-fault divorce state, so adultery can't be used in your case, even if your spouse wants to.

If you're at the other end of that continuum, though, and you've got children, property, and alimony involved, then you may not want to date AT ALL until the divorce is final.

Why not? If adultery can't be used in the divorce, then what does it matter?

It matters because you've just got too much at stake. First of all, you are far better off if your divorce doesn't become contested. For all of the reasons outlined above, dating other people while you're still married increases the possibility of a contested case. If you get into a contested case with children or a lot of property involved, you're talking major bucks flowing out to the lawyers. And, you're probably talking about a lengthy waiting period before you can finalize your case; much longer than the six months involved in a normal case.

Especially if you have children involved, you should live your life during the waiting period AS IF you had a private detective watching your every move. If your spouse decides to fight you for custody, you don't want the judge to be looking at a series of photographs of you taken through a motel window. You want to go in to that contested hearing looking absolutely upright and respectable, and that doesn't include going out on dates while you're married.

SEX WITH YOUR SPOUSE - CHEATING ON YOUR LAWYER

There are people - more than you'd suspect - who continue to have sex with their spouses while they're waiting for the divorce to be finalized. They may even continue to live in the same house and have sex right up until the divorce. Some people refer to that as cheating on their lawyers.

Is it a good idea? Probably not.

From an emotional point of view, it's important to get closure on the relationship. It's important to acknowledge that the relationship is OVER and start your new life. That's kind of hard to do when you're still having sex. It can also be a cruel thing to do, if one spouse is ready to divorce and the other one isn't. The spouse who doesn't want the divorce will keep hoping that the marriage can be saved every time the couple has sex. And then he/she will even more devastated when the divorce is granted.

It's also a bad idea from the legal point of view. There are a couple of elements to a no-fault divorce. One, the marriage is over. Two, there's no possibility at all of reconciliation.

Now, the standard way to prove that a marriage is over is to show that the couple has ceased living together as husband and wife. In one sense, that's just a matter of showing that one party has moved out and established a new residence. But suppose that the couple is still living together. Perhaps there's a financial strain and it's simply cheaper for them to live together until the divorce is granted. What will the judge be looking for as proof that the marriage is actually over?

Well, traditionally, the proof has been that the couple has, "ceased marital relations," which is a nice way to say that you aren't having sex.

So, suppose you've filed for a divorce, and you really intend to get it. BUT . . . you're still very attracted to your spouse and you're still having sex with him/her. And suppose your spouse doesn't want the divorce? You're almost at the end of the six month waiting period and suddenly your spouse files a response and asks the judge to order marriage counseling.

What will the judge be looking at then? First of all, you've still been sleeping together, so there's a real question about whether your marital relationship ever ended. Second, you're having sex with each other, which could be a pretty strong argument that your marriage could be saved. So, you now have a very good possibility that your case can be thrown out or that you can be ordered to have counseling before the divorce is granted. And, you're paying a lot of money for a contested case.

Basically, then, just think it through before you start dating. Be sure about what your motivations are, what you expect to get out it, whether you're trying to reaffirm yourself or to punish your spouse. Be VERY careful about dating if you have children involved. And be very careful about crawling back in the sack with your soon-to-be ex. Six months may seem like a long time to do without, but it's not forever.

Standard Disclaimer
Our Divorce Forms and the Divorce Course are designed as educational software to enable and empower you. They are not intended as a substitute for competent legal counsel

About the author: Daniel Adair spent 16 years working in a family law office that processed between 25 and 50 divorces a week.. He is the author of, The California Divorce Course - How to Split the Sheets Without Losing Your Shirt," and has written extensively on the California divorce process.

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