Legal: What You Can Control When Spouse’s New Partner Spends the Night
No. It’s the resounding answer to the question: Should you have a member of the opposite sex spend the night while you are divorcing, or even newly divorced?
If there are children involved, overnight guests are a no-no,” said Kathy Stafford, 50, relationship coach and author of Relationship Remorse” (Eplanet Publishing) based in Charlotte, N.C. Children do not and should not have to deal with an endless stream of ‘new dads’ or ‘new moms.’ If you want to have a sexual relationship with someone new, that’s OK. Just don’t do it with the kids at home.”
And in her opinion, it doesn’t matter how old they are. Children of any age are traumatized enough by the separation of their parents. I know that a lot of my clients say, ‘But my kids are older and they understand about sex. They know I like to have a sexual relationship.’ While that might be true, just remember the example that you are setting is that it’s OK to have sex with people you aren’t married to. I think that is a bad example to set. Monkey see monkey do.”
But morality aside, there are more pressing legal implications to consider when entertaining overnight guests while your children are in the house, especially if you are just separated and dealing with custodial issues.
It’s never a good idea, but not even for the moral reasons or even the kids. I am thinking of it from a litigious point of view. We have had many cases that we have surveilled and that can be brought to light during the litigation and can jeopardize child support,” said
Thomas Martin, 63, a private investigator and former FBI agent from Newport Beach, Calif. You have to remember, at least in California, if you have someone stay overnight for three nights, and they don’t have to be consecutive, that can be considered co-habitating.”
And if there is a clause in your agreement or divorce decree that ties alimony or child support to cohabitation or can financially penalize you for having another adult sharing your living space, all of that can be jeopardized. And it might also cause some problems with your custody of your children.
I would caution the client in terms of custodial issues down the road that it is not good judgment if you start having a trail of people through your house,” agreed Judy Poller, partner and chair of the matrimonial department at Dreier LLP, a Manhattan-based law firm. You are actually harming your child. And I would be concerned if there were such issues between the parents that there was always going to be a concern about whether there could be good joint decision making regarding the kids.”
Even if it isn’t a revolving door of men or women running through your bedroom, it makes a difference. A steady relationship so early on might also color your divorce. Say you are with someone on a fixed basis, you will be asked by a psychologist to bring that person in for an evaluation in child custody hearings,” said Daniela E. Schreier, 37, a licensed clinical psychologist and assistant professor of the Chicago School based in Illinois, who has a background in forensics and works within the court system with custody evaluations. This person has to come in to be evaluated. And we just had a case where an ex-husband came back and contested because his ex-wife hadn’t told the truth about the fact she was dating one man, and he had stayed over the house, spent weekends together and the kids were in his constant company. We had to reevaluate.”
While it doesn’t do much good to lie to the courts about having a significant relationship especially during separation, it might be even worse to keep it from your soon-to-be- ex, especially if that person has control issues. If the relationship was abusive at any level, sleeping with another person might be the trigger for more violence. For the control-freak-soon-to-be-ex-husband, it can create heavy duty jealousy issues,” Martin said.
Yes, be careful and mindful because you are still in that relationship especially if you live in what was the shared residence,” said Schreier, who also specializes in dealing with relationships between controlling spouses and their partners. You have the house but it also is your ex’s house. And sometimes that is how he views it. Does he still have the keys? If you were married to a possessive and jealous man, you don’t want him to walk in on you with someone else. What if he hires a private detective? If he is a controlling person, this will inflame him and could possibly lead to rage and violence directed against you. “Even if he is not controling, why give him more ammunition?”
But whatif it isn’t you who wants a sleeping partner. What if it’s your soon-to-be-ex-spouse whom you worry has the proclivity for overnight companionship that might be upsetting or sending the wrong message to the children? Is there anything you can build into a formal agreement that would prevent such behavior?
Before the divorce is final, temporary orders can be put in place, and it can be phrased as ‘unaccompanied females should not be in the presence of the children or allowed to stay overnight’ or something to that effect,” said Susan Elliot, 51, certified grief counselor and founder and CEO of Getting Past Your Past Productions, LLC, who helps people move beyond painful breakups and loss. But by the time the divorce is final, usually there is not much you can do. I think that a court would be very reluctant to continue to control parties after divorce is final. No one wants the court in the bedroom.”
Poller, 49, agreed. In fact, in her 25 years as a matrimonial lawyer, she says that having a clause built into a final divorce decree is unreasonable and has a tough time holding up in court if there is a breach. “Unless there is a real fear that one party has a new partner who is a danger, the courts are not going to prevent someone from moving on,” Poller said. The courts are not going to say you can’t have overnights. They will encourage restraint because it’s not great for the kids but they won’t formally do anything.”
But during the separation period, it’s a different story. Poller says such restrictions can be built into the temporary agreement if there is some concern about the welfare of the children. In terms of an agreement, which is temporary, I have never built in more than nine months to a year and typically, it is in the six month range. It usually states that neither party will have overnight guests for those months. I find that people will agree to certain things between themselves especially if they know this is a trigger point.”
But she cautions that even if you put these provisions in an agreement there is a real problem in the enforcement of it.” Because rarely is the conduct tied to any financial provision, she says. You don’t have a provision that says if you break this agreement then child support is going to be withheld because people do not agree to those kinds of things. At best, you might be found to be in default and your legal fees are paid for. The defaulting party can proceed to court and if successful, there is the slap on the wrist. Unless the specific provision is tied to finances, there isn’t any enforcement.”
But that doesn’t necessarily mean that there isn’t any recourse. If you feel like something is going on in your ex-spouse’s house that is creating legitimate concerns about the kids you can always revisit visitation. You can certainly do that,” added Elliott, whose practice is based in New York City. Whether or not the court is going to intervene is another matter. The point is: Can you can prove it is harmful to your children?”
Which brings up perhaps the most important point. Is it really the kids who are having a problem -” or is it you? You cannot forbid your former partner to form another relationship,” Schreier said. In many cases, people are still angry at each other during a separation and following a divorce, and often the complaints are more about them getting over that. By all means, if you are feeling your children are harmed or there is a threat of abuse, be quick and proactive. But if it’s all about you, letting go is the healthiest thing to do. Or you are going to make your life complicated and that of your spouse.”
And the courtroom is not the place to work out the problems stemming from a failed relationship, Elliot pointed out, adding that in fact such a tactic often can backfire.
These are people who try to work out their emotional issues in the court,” Elliot agreed. These are people who keep going back to court again and again, and they can run up against being fined for abuse of process. Family court judges will do that if you are abusing the process. I was a family facilitator and there were certain people that would do this. They would proceed pro se, without an attorney, because no attorney would take the case because there was nothing there. Those people just need to get over the hurt and move on.”
Poller agreed, adding that with time, most of the initial need to have the court involved during the breakup of a family just goes away. I think what happens sometimes is that the ones who are demanding these types of restrictions are still hurt and dealing with the betrayal of the marriage,” Poller said. They feel they need to get something; some control. But as time goes by, that need to control, to have their former spouse restricted, dissipates over time.”
