No Sex During Divorce?

On behalf of The Marks Law Firm, L.L.C. posted in Divorce on Tuesday, March 25, 2014

If one man who went through a bitter divorce has his way, no one in the State of Massachusetts will be able to have sex in the marital residence until the divorce becomes final and all custody and financial issues have been resolved.

This man – Robert LeClair – used an obscure legislative procedure to put his law onto the legislative calendar through his state senator, who actually opposes the bill.

The bill reads in full:  “In divorce, separation, or 209A proceedings involving children and a marital home, the party remaining in the home shall not conduct a dating or sexual relationship within the home until a divorce is final and all financial and custody issues are resolved, unless the express permission is granted by the courts.”

While it seems extremely unlikely the bill will pass, it bears taking a closer look in terms of passing constitutional muster.

Generally, the Constitution protects intimate sexual relationships and the right to procreate; it is a fundamental right that requires any infringement receive strict scrutiny, which means only a compelling governmental interest could justify the intrusion, and only if it is the least restrictive of alternatives.

The interest advanced by Mr. LeClair is that it is in the best interests of the minor children during separation or divorce to have a home free from new relationships while their parents try to resolve the dissolution of their relationship.  Certainly we can all support the concept of stability and ease of transition for the minor children, and one can certainly see how having a new partner in the marital home would increase confusion and anxiety.

Given that the bill has a seemingly genuine purpose, can we call it compelling?  Courts generally consider protecting the health and welfare of a minor child a compelling interest, so we shall make that same assumption for the sake of argument.

Now we must address whether the intrusion meets the least restrictive means test.  First, the idea of the “sex police” seems far too “Big Brother” to ever survive a judicial challenge.  Parents in the middle of divorce should not have to seek judicial approval to have sex.

Defenders of the bill will say the bill does not prevent sex, only sex in the marital home.  That limitation would have more meaning if applied evenhandedly, but as written it allows the non-custodial parent to have sex with any consenting adult even if the children are present in the home.  As written, the bill discriminates against the residential parent without any basis for thinking that the residential parent will more likely engage in sex with a new partner.

Also, if the point of the bill is to protect the status quo of relationships for the children, should it not prohibit both parents from engaging in any dating until the divorce becomes final?  While hewing more closely to the purpose of the legislation, it still has the effect of infringing on intimate relationships.  It also seems rather unenforceable – absent hiring a private detective to follow the parent 24/7, how would the court ever learn of a violation?

While it seems unlikely the family court will ever become the Bureau of Chastity, the family court does currently have ways of taking into account the choices parents make during marriage and during the divorce process.

Parents have freedom to choose sex partners, but how they conduct their private lives with respect to the children does impact the welfare of the children, which does fall under the jurisdiction of the family court in making a legal or physical custody decision.  While one has a right to engage in intimate sexual relationships, the law has never said that those relationships will be without consequence.  An adulterous spouse could be guilty of marital misconduct, which could affect a property distribution in divorce.  A spouse with serial sex partners while the children are present in the home may be deemed an improper physical custodian.  And courts have approved of restrictions on sexual activity outside of marriage in dissolution decrees (usually by agreement of the parties).

So, while the Massachusetts bill seemed ludicrous on the surface, its underlying intent already informs most of the custody statutes in our country.

The Constitution protects a parent’s right to have an active sex life, even during divorce proceedings, but it does not shield that sex life from limiting custody if the court deems that sex life injurious to the health and welfare of the minor children.

Should a court have that kind of power?  Does that not allow a prudish judge to impose his or her sense of propriety on a parent without any real proof of harm?  Yes – but usually a court will not reach out that far without some evidence in the record – from a psychological assessment by an expert for example.

The “sex police” concept has been used to discriminate in the past, restricting the parental rights of gay and lesbian parents in favor of their heterosexual counterparts, something the law would not allow today.

The issue of post-marital relations and their impact on raising children is actually a very difficult one to navigate and requires case-by-case, fact-specific investigation.  As a general rule, however, parents should simply exercise common sense – limit how much of an adult private life touches the children’s lives until the two need to meet – when a relationship seems serious enough to warrant that interaction.

If you have questions about sexual behavior and divorce or custody, contact our St. Louis family law attorneys – we can help.

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