What you need to know about Divorce
VI. Sex and Divorce
Pragmatically speaking, clients frequently have concerns about how the divorce process will affect their sex life.
These concerns are not generally articulated unless ones spouse elects the make a private fact public, usually with the intention of seeking to gain advantage in issues which involve child custody/visitation or the distribution of marital assets.
In reference to child custody/visitation, in Illinois today, the mere act of cohabitation by a custodial parent with a member of opposite sex will not adversely affect custody.
Same-sex cohabitation by gay/lesbian parents may be proper and relevant to the courts consideration in custody proceedings, but findings must be based on the best interests of the child, or, if within two years of a prior decree, the presence of serious endangerment.
Consequently, opposite or same-sex cohabitational relationships, in themselves, may not be used as the sole basis for a denial or change of custody if the court finds that such conduct does not interfere with parenting, that there is not sexual conduct occurring within the presence of the child, and there is no evidence that such lifestyle(s) have a detrimental effect on the physical or emotional well-being of the child.
In reference to marital assets, in Illinois, the grounds of Adultery have often been employed in divorce proceedings to obtain hypothetical bargaining power against the "guilty" spouse. Adultery must be proven, by the Petitioner, by a preponderance of evidence, whether circumstantial or direct. Once adultery is proven, the Petitioner may have a separate cause of action (in Tort) against the Respondent and their paramours and/or the foundation to assert a claim for dissipation of marital assets.
Dissipation is defined as expenditures by the (adulterous) spouse for purposes unrelated to the marriage. Such expenditures may include gifts, trips, "ghost payrolling" and the unauthorized transfers of cash or personal property having substantial value.
When dissipation is established, the court will typically charge the amount spent by that spouse against their portion of proceeds from the division and distribution of the net marital estate.
Obviously, in divorce, as with life in general, common sense should control. We suggest that the continuance of normal, yet discreet, sexual relations during your divorce is beneficial not only to maintain ones physical and emotional ballast through a tumultuous time, but also to reinforce ones feelings of self-confidence and desirability as your life begins anew.