May 21

Be Careful of What You Agree to: Understanding the Morality Clause in Your Divorce


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divorce blog, morality clause, parenting after divorce, parenting issues


Child covering eyes, then ears, then mouthMany divorce judgments contain what is known as a “morality clause.”

While there are many variations of that clause, a morality clause is essentially a provision in a divorce decree, or court order, that says that neither parent can have a romantic partner spend the night while the children are present.

A morality clause is supposed to prevent a parent from exposing their children to a “revolving door” of new boyfriends/girlfriends. However, what it often actually does is create serious problems for a divorced parent in forming new relationships long into the future.

The Morality Clause in Action

A lesbian couple in Texas discovered the power of a morality clause when one of their ex-husbands went back to court to enforce the morality provision of his divorce decree. The husband claimed that he was enforcing this provision “for the benefit of the children.”

The lesbian couple objected, stating that they were providing a stable, loving home for their children. Ultimately, the judge enforced the provision. He gave the ex-wife’s paramour 30 days to move out of the home they shared with the children.

The lesbian couple claims that the enforcement of this provision violated their civil rights. Texas doesn’t recognize same sex marriages. Unlike heterosexual couples, they can not marry to get out from under this provision of the divorce decree.

The broader question, however, is whether the ex-wife should have signed a judgment containing this type of morality clause in the first place.

Person holding a paper with drawed question marks on it in front of his headShould You Have a Morality Clause in Your Divorce Judgment?

Over the years, I’ve had many clients, or their spouses, insist on putting a morality clause in their divorce judgment. The reason always boils down to some variation of: “its in the children’s best interest.” But, is it? Are you sure?

What happens three or five or ten years after your divorce is over when you have finally gotten on with your life and are in a serious relationship with someone new? Do you marry that person just so that s/he can spend the night with you? That seems like a bad idea.

Or, what if you are planning to get married, but your fiancé sells his or her house two months before the wedding and has nowhere to go? Is your fiancé supposed to get a two month lease somewhere and move twice when, in a few months, your children are going to see you living together anyway?

Or, what if both you and your fiancé have children and you want to try spending a few weekends together as a blended family? Doesn’t it make sense to try to make sure everyone gets along before you get married? That would certainly seem to be the prudent thing to do. Spending a few weekends together will actually help you discover and address any issues the children might have before you throw them into a permanent blended family.

White angel and red devil drawn on a brick wall.The Problem With Morality Clauses

The problem with a morality clause is that life changes, and it doesn’t.

Courts are not designed to enforce morality. They are designed to enforce laws.

When you write morality into a court order, you put the judge in an extremely difficult position. Judges don’t want to know who your ex is sleeping with. They don’t want to insert themselves unnecessarily into a family situation that may be working perfectly fine.

On the other hand, judges don’t appreciate people ignoring their court orders. If you agreed to put a morality clause in your judgment, and you signed off on it, you can’t expect to get a lot of sympathy from the judge when you discover later that it is affecting your life in ways you never dreamed about.

So, what happens when the morality in clause in your divorce judgment comes back to haunt you? That depends on where you live, and what judge you find yourself in front of. Some judges will enforce these provisions. Others will not.

If a judge does hold that you can’t have your romantic partner spend the night unless you get married, your choices are pretty simple. You get married. You risk losing your kids. Or, you sleep alone. Those are your only choices.

So, do yourself a favor now.

Before you agree to have a morality clause in your judgment, think long and hard about whether that’s something you really want, and are willing to live with if you become involved with someone in the future.

 

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  • Hello there! Do you use Twitter? I’d like to follow you if that would be ok. I’m definitely enjoying your blog and look forward to new updates.

  • I truly enjoyed reading your blog, I find the morality clause like you said to be something that you should truly think about before signing the document. I am a lesbian and my partner and I have be raising my two year old from my previous marriage for almost two years. Our home for my son is filled with nothing but love, guidance and structure for him. My ex disagrees, called our son a name that i care not to repeat, yesterday and he’s trying to threaten me by saying that he will add a morality clause to where I can not have any overnight guest, unless married and he made the comment saying.. You know Texas doesnt recognize or allow same sex marriage, so he’s basically doing it out of spite because he’s still bitter. My question is, can he go back to court and add a morality clause and have it enforced just because?

    • The laws in every state are different, so you would have to check with a Texas lawyer. What it sounds like your ex is threatening to do is to take you back to court and claim that what you are doing is not in your son’s best interest. If your ex is really that bitter, I would definitely take his threat seriously. Its worth your time and money to spend an hour talking with a good family lawyer in your area to find out what your ex realistically can and can not do. If you learn that, under Texas law, he can’t go back to court on this issue, you will have gained some peace of mind. On the other hand, if it turns out that he actually could take you back to court, you will find that out, too. That might not be great news, but at least you will know exactly what you are facing. The lawyer may also be able to give you some specific advice on what you can do now so that, even if your ex does take you back to court, he won’t be successful. Finally (and I know this is probably a long shot), I would see if your ex would agree to go to counseling with you so that the two of you could set some ground rules for dealing with each other over issues arising with your son. Going back to court will not be good for your son…or either of you. If your ex truly has concerns about your son’s well being, then talking through those concerns in counseling can help both of you address them in a more constructive way than by fighting about them. If your ex is just using this issue as a way to get back at you because he is bitter, a good counselor should be able to figure that out and help him deal with the real issue.

  • Thank you for the post. Can a morality clause only be inserted into divorce decrees with the approval of both parties, or can they be inserted unilaterally by a judge? Is this true in every state? I would be particularly concerned if the approval of both parties is not needed.

    • Typically, morality clauses must be agreed to by both parties. I have never had a judge unilaterally insert such a clause into a divorce judgment in any case in which I have been involved. I don’t think the judge can unilaterally insert such a clause into a divorce judgment under Illinois law. The truth is that these clauses are very difficult to enforce and judges usually aren’t too crazy about them. While I can’t answer this question for every state, I would be very surprised if other states allow a judge to unilaterally insert a morality clause into a judgment absent the parties’ consent. If this is an issue for you, I suggest you ask this question of a lawyer in your jurisdiction, just to be on the safe side.

  • Hi there! Great article!

    I had my JPA finalized in November 2013. In it we have a no paramour clause. I am now 24 weeks pregnant by my boyfriend (who lives 6.5 hours away). We have been together over 2 years. I didn’t allow him to meet her until over a year of him and I dating. He is trying to find a job down here in his field. He will not be living with me until we get married (we do not have a set date). The plan is to have him move down here as soon as possible, which will allow for more time for him & my 6 year old daughter to bond, and get married eventually. However, with the baby coming I have questions on him spending the night. In the unfortunate event I have health issues arise or my unborn child, is there an exception to the rule. I should also state that I have zero family in my area. I would love some advice on what to do if I need him a night that I have my daughter? Our paramour clause states “neither parent shall have his or her boyfriend or girlfriend spend the night while in her presence”. Any help or direction would be appreciated!
    Thank you kindly,
    Misty

    • Misty,

      Great question! It highlights one of the problems that can arise when you have this kind of a clause in your Parenting Agreement. And you are very wise to be thinking about this NOW, before you are in a bind and don’t know what you can or can not do. Unfortunately, because the law in this area can be quite complex, and because divorce laws vary form state to state, I can’t give you legal advice online. But I would suggest that you do 2 things: 1) talk to your ex about the situation. If, as parents, the two of you agree that there will be certain exceptions to your “no paramour” clause (and you would have to decide exactly what those exceptions would be) you may be able to modify your JPA to accommodate your new circumstances; and 2) talk to an attorney in your area who is familiar with the laws of your state and can read your entire JPA and advise you about your options. Many attorneys will give you a free consultation and, since you are only asking them about one issue, your consultation should be relatively short.

      All the best.
      Karen

    • It depends on what your divorce documents say. Some divorce judgments spell out the times exactly (i.e. from 10pm to 6am.) Others don’t. Those are open to a judge’s interpretation. While I can’t say what a judge in your jurisdiction would do, “spending the night” generally means what it says: that someone stays overnight. If that person leaves at 6am, did s/he spend the night? Probably, yes. If that person left at 2am, did they “spend the night?” That is harder to say. You need to check with an attorney in your area to see how your judge would likely interpret the morality clause in your case.

  • My husband and I separated in early 2016 but in Virginia, the state where I still reside, couples with children cannot file for divorce until 12 months have elapsed. He moved to another state more than 600 miles away and we are struggling to work out the details of our separation agreement so that we’ll have most things decided ahead of the actual filing. I have made all of the mortgage payments and covered repair and maintenance costs out of my own wallet since we separated. My ex is now saying he wants to add a morality clause to our separation agreement so that no one else may live in the house until his share of equity is paid. I feel this is an unreasonable request and is being done only because I have started seeing someone and he has not found a new relationship. What other arguments can I make against its inclusion?

    • You’re probably right. Since you’re now in a new relationship, your husband wants to make sure that he controls what happens when you’re with the kids. The bigger question is: what can you do about it?

      I have no idea how the judges in Virginia feel about including a morality clause in your divorce judgment. That is definitely a question to ask your lawyer. If the judge won’t order you to include it (and judges in many places won’t force you to include this kind of clause in your divorce papers) then you can simply tell your husband that you disagree with him. You can just say “No, I won’t include a morality clause in our divorce.” If the clause is really that important to you, he can fight about it in court. Obviously this is risky. It may cause a fight. But, it may also call his bluff, if in fact he just wants this, but isn’t willing to go to the mat over it.

      You can also negotiate this. What does your husband want? Perhaps you trade. You give him something he wants and he backs off on the morality clause.

      If your husband is reasonably self-aware and reflective, you might ask him whether the reason he is doing this is really for the kids, or whether he’s just hurt and wants to control you? I can tell you that if he is asking that no one else live in the house until his share of the equity is paid, that has nothing to do with what’s best for your kids. It has everything to do with his ego.

      The last argument you can make is a financial one. If you rented a room in your house, or shared expenses with someone, you would have better cash flow. You would then be able to pay off his equity faster.

      I’m not sure whether these arguments will work. But, it’s definitely worth a try!

      Karen

  • i have a friend that put in a morality clause thats been divorced for 15yrs now she met someone that she truly loves and wants a life with but the clause is keeping them apart from 10p to 6am can she get it removed without her ex husband agreeing to it.

    • If her ex husband doesn’t agree, she’ll have to go back to court to take it out. She should talk to a lawyer in her area about it. Although, if she’s been divorced for 15 years, that means that her kids are at least 15 years old, so it really might not be that big of an issue any more. It would be worth her time and money to check with a local lawyer on this.

  • Me and my wife of 8 years have been separated for over 6 months, and haven’t been together since 8 months ago. And are in the final stages of the divorce paperwork. She wants to put a morality clause in the decree, but I don’t want to feel like I have to marry my next partner just we can live together. I’ve actually been dating a new partner for the last 4 months, and we are extremely happy. Not to mention my 2 children love her and she loves them. My ex also as moved on and gotten a new partner as well so it’s not just me moving on. My question is if my new partner moves in before I sign the paperwork with the morality clause in it. Will is still be in effect, or will it be “grand-fathered” in since she was living with me before the paperwork was final. We both live in Georgia.

    • You’re going to have to ask a Georgia lawyer that question. But, please, ask your lawyer soon! The last thing you want is to have to kick your new girlfriend out as soon as your divorce is final, just because you left a morality clause in the paperwork!

      Good luck!
      Karen

  • I had to have a morals clause added into the divorce decree so my kids’ mother would not be moving with my kids from one house to another and back. My question about the morality clause concerns adult siblings. My ex step daughter (ex wife’s daughter from previous marriage) still lives with her mom as she just graduated college and is just starting out in her new career. She has been having boyfriends (with her mother in full knowledge of) stay the night since shortly after our divorce 8 years ago. My kids are fully aware that their sister is not married, but boyfriends are allowed to sleep in her bed all the time. Is this governed by the morals clause?

    • I can’t say for sure without seeing what was written in your divorce decree,

      You have to look at what the morals clause in your divorce decree specifically says. If it says it applies to the sister, it does. If it doesn’t say it applies to the sister, then chances are it probably doesn’t. To be sure, though, you should bring your divorce decree to an attorney in your area and get his/her opinion.

  • I have a question. My son has this clause in his decree it states that a romantic interest can not reside in the home between 8 p.m. and 8 a.m. However does this mean if they are alone with the children. When he has his two daughters we are all together. His girlfriend does not stay the night with him she always stays with me as she lives more than an hour away. So my question is if we are all together as a family until past 8 pm is that a violation? Also does this include birthdays and holidays when we have extened family and friends over. They are not alone in the home with the children. We are a very close family and his exwife causes issues with us over this. We can have them all at our home but the girls like being back at their home which is the home they have always known and they enjoy their rooms and toys.
    Thank You!

    • Okay, this is tough. What your son can and can’t do depends on what his divorce decree states. Because I haven’t read that decree, and I’m only licensed to practice law in Illinois, I can’t give you legal advice about what is or is not a violation of his divorce decree. (Sorry.) You’ll have to check with a lawyer in your state about that one.

      In general, though, the purpose of these clauses is supposed to be to protect the kids from being exposed to certain things. So, it makes no sense to me that having the whole family over past 8pm would be a problem. That’s not the kind of conduct these clauses were supposed to prohibit. But, again, I can’t tell you that with any certainty because I just don’t know.

      Since this is obviously affecting your family, I would suggest that your son first go to a good divorce attorney in your area and get his/her opinion on all the ways this would or wouldn’t hold up in court. Ask the lawyer what the likelihood of getting this changed in court would be. Ask the lawyer how this clause would likely be interpreted. What, exactly, does “reside” mean? (I know this seems picky. But that’s what lawyers do. We analyze every word.) Also ask the lawyer exactly what kinds of things would violate this provision? Do judges in your area tend to enforce these provisions or not?

      Paying a lawyer to get this kind of clarity will be the best money you ever spent. (It’s also way better than going back to court and fighting right from the start.) Then you will have a way better idea of what your son can and cannot do.

      Hope that helps.

      Karen

  • My daughter and her baby daddy never married but they separated when their son was about 4 months old. My daughter now has a boyfriend and they have been talking about moving in together – the baby. There is no morality clause in their parenting agreement but could he take her back to court on moral grounds if they do move in together?

    • This is America. Anyone can take anyone else to court for a whole lot of things. The more important question is: if he takes her back to court, will he win?

      The answer depends on the law of your state and the culture of the court house in the area you live in. I suggest you talk to a divorce lawyer in your area. S/he will be able to answer that question the best for you.

      Karen

      PS I know this may not be what you want to hear, but if your daughter marries her boyfriend, this problem goes away.

  • So I have a question I am in a relationship with someone that was divoreced a little over a year ago and her ex husband and her didnt have a morality clause in there divorce but he is try to threaten her with filing for one even though there is nothing to substantiate his believe and late has just been doing thing to harass her and cause problems because he’s not getting his way. What can I do if anything can be done.

    • In order to know whether he has any realistic chance of amending his divorce papers to add a morality clause, you would need to talk to an attorney in your area. Usually, it’s more difficult to add that kind of a clause after the fact, but a lot will depend upon the law in the state you live in and the culture of the courts/judges in your area.

  • Hi, in this wording how would you interpret “presence”? Would that be in the same house. Or same room? Wondering if i could live with my longtime girlfriend and she just not be in the same room or visually see the child between the specified hours. Or does that mean the entire house? And so then do i need to go back to court to get this changed to be able to live together? Thanks for all the advice you have given!
    After a divorce is granted, or if the parties were not married, both parties are restrained from having the child on an overnight basis in the presence of an adult party with whom they have a romantic interest or sexual interest. Overnight is defined as from the hours of 10:00 p.m. until 7:00 a.m. the following morning.

    • You’re trying to draw really fine legal distinctions here. Whether those distinctions would ever hold up depends upon what the judge in your case would say. It also depends on the law in your state. I’m afraid you need to consult with an attorney in your area to get an answer to these questions. Sorry.

  • I like your article.
    I got divorced 10yrs ago and have the morality clause.
    I want to move into a live in with my bf. We have been in relationship for 5 yrs. he stays at my place and his and my kids love each other
    My ex is aware but objects and threaten of court action.
    I want to inform my ex about moving in with my bf and then talk to my kids but I’m scared that he will bring in the morality clause
    My ex is purely evil is there anyway I can protect myself.
    I donot want to get married under pressure.
    Pls advice

    • I’m so sorry. Unfortunately, if you have a morality clause in your judgment your only options are:

      1. Go to court and get it changed. (Be sure to check with an attorney in your area to find out if this is possible, and what you’d have to do to make it happen. It depends on the law in your state.)
      2. Marry your bf.
      3. Don’t move in with your bf.

      Violating a court order is NOT an option. (Sorry!)

      I wish I had better things to say. But those are your only realistic options.

      Karen

  • Can I add a morality clause now? We’re divorced apx 4 months now, but my ex is refusing to have alone weekends with his children. In the short time we’ve been divorced he immediately introduced the kids to his long time and MARRIED girlfriend, because she’s polyamorous. Ex has only had 2 weekends alone with the kids. Now the married gf, that has a child of her own but never sees, because she’s living part time with my ex, will be there every weekend he’s supposed to have the kids.

    We have 10 kids together and most of the kids themselves refuse to visit him because of her. I’m trying to protect the youngest kids who have little to no voice in the matter.

    I know this could affect me later on, but I respect the kids and their wishes. He’s selfish and only thinks of himself.

    I would like to have the kids know their father without being parented by another woman who can’t even stand to live with her own child.

    • It may be possible to add a morality clause in your paperwork now, but that depends on a lot of different things, including the law in the state you live in. Doing that will also probably require you to go back to court, and spend a lot of money in attorney’s fees in the process.

      I can totally understand your desire for the kids to know their father alone, but, with all due respect, that’s not something you can control. Even if you end up getting the morality clause you want, all that means is that the other woman couldn’t spend the night with your ex while the kids are there. It doesn’t mean she couldn’t spend every waking hour with them.

      IF you’re really interested in adding a morality clause into your divorce judgment, you need to talk with an attorney in your area about that. Although, the bigger issue seems to be your kids’ relationship (or lack thereof) with their father. For that, a family therapist would be the most helpful.

      Karen

  • If I moved out 5 months ago and have apposite gender roommate and now I decided to file for divorce but my still husband wanting to do Morality Clause, will my roommate has to move out? and For how long that clause will be on? If I cannot afford place all myself and not able to find female roommate yet who will be agree share with me and my 3 kids.
    As long I already have my roommate for 5 months and kids are pretty comfortable with him , will it change anything or no matter what one of us have to move out?

    Thank you

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