Kelly Moore: Is Dating During Separation Adultery?

Legal separation can mean different things in different states, so it should come as no surprise that the laws regarding dating after Legal separation are also somewhat inconsistent. Dating might be adultery before a divorce is final but it might not be. The significance of committing adultery also varies from state to state. Some states consider a couple legally separated when they have signed a separation or marital settlement agreement and relocated to separate homes. A separation agreement is a binding contract, but the contract is between the spouses and doesn’t involve the court until they’re divorced and it becomes part of a decree. Until that time, they’re still married. In other states, legal separation is a process similar to divorce. One spouse must file a petition with the court and a judge decides issues of property, support and custody, much as he would in a divorce. At the end of the litigation, the court issues a decree of legal separation. Some states, call this a divorce from bed and board. However, spouses are still legally married when they separate by this method.

Dating is not adultery in itself. Adultery requires that sexual contact exists between a married individual and someone other than his spouse. If a married but separated man takes a woman out for dinner, but drops her off at the end of the evening and goes his own way, it’s generally not adultery. Sexual contact probably did not occur. If he dates that woman repeatedly and they begin spending time together in each other’s homes, this can open the door for his spouse to claim the affair is adulterous because sexual contact might be taking place.

Adultery During Separation

In some states, adultery is a crime, although it is rarely prosecuted. In states that still recognize fault-based divorces, adultery has more of an impact. If a man begins dating during a legal separation in one of these states, and if his wife can prove that the relationship is sexual in nature, she can usually file for divorce on grounds of adultery. This can affect issues of property distribution and alimony. However, some states make a legal distinction between dating during separation and dating while living together as man and wife. In Utah, unless one spouse is clinically insane, couples can only file for divorce after a one-year separation period. If a spouse commits adultery prior to the beginning of the separation, it affects issues of alimony. If the adultery occurs after the date of separation, it does not.

Other Considerations

Under the terms of the Uniform Code of Military Justice, adultery is a criminal offense. However, the timing of the adultery may be considered. Adultery in the military is punishable when it is construed as morally wrong. Therefore, if the adultery occurred after separation and not before, it may be excusable during a military inquiry. It would depend on the opinion of the officers conducting the inquiry. In states where legal separation involves a court proceeding similar to and as complicated as divorce, or when spouses have signed a separation agreement and want to begin dating, it might make sense for them to simply divorce instead, so they can move on with their lives. Dating during a marital separation may or may not classify as cheating, depending on the promises made and expectations held by both spouses. Having an affair during a temporary, let’s-take-a-breather separation looks very different than a romantic involvement after a final, legal separation. In either case, however, dating while technically married can have detrimental legal effects in some states.

Expectations and Promises

When the word cheating is used in a marriage, it generally implies that one spouse has broken promises of fidelity. For some people, they never end, and the “till death do us part” vow makes any dating forbidden ever, even after separation or divorce. Others see marriage as a legal institution that is terminated together with all commitments and responsibilities upon divorce. Still others consider some types of separations enough to cancel marital commitments.

Types of Separations

Whether separation annuls marriage vows in a moral sense may depend on the type of separation. Marital separation means that a couple is living apart, but the range of separations is great. Some couples decide to live apart for a few months while working on their issues. Sometimes spouses separate when one moves out and files for divorce. Other married couples go to court and obtain a legal separation, with a court decree resolving all custody, support and property issues, the equivalent of a divorce in all but name.

Evaluating Your Separation Commitments

To decide whether your actions constitute cheating, morally speaking, you’ll have to review the terms of your separation. If you and your spouse agreed not to see anyone during the separation, dating is cheating. If nothing was said about the subject, but you and your spouse are actively working on your marriage during the separation, a promise not to get intimate with a third party can be implied. A break is not a break-up, according to psychologist Mark White, and dating around violates the spirit of your arrangement.

Legal Consequences

Years ago, having an affair while still in a marriage constituted adultery and provided grounds for divorce. All states now provide for no-fault divorce, allowing divorce, and in some, like California, adultery cannot be considered in property division or support awards either. However, this doesn’t always mean that adultery has no effect on your divorce. The majority of states also permit fault-based divorce on grounds including adultery. If your spouse wins a divorce based on your adultery, it may affect the division of marital property as well as alimony rights. As you can see, the definition of cheating has many definitions and variations based upon circumstances and basic understandings (implicitly or explicitly) between couples. One cannot make claims as to what is right and not right, but safe to say there should be an understanding between the individuals involved.

Married couples split up. Many will then go on to start new, happy, fulfilling relationships. It is not uncommon for separated couples to move on by moving in with their new respective partners. Sometimes couples will decide to live separately before seeking a divorce so that they can use that period of separation as the basis for their divorce. Once you have been living apart for more than two years, this can be used as grounds for your divorce as long as you are both in agreement. If you wanted to proceed with a divorce sooner, then one of the two ‘fault based’ grounds would need to be relied upon. If your partner does not agree to proceeding on the basis of two years separation – and you do not want to use the fault based grounds – you would need to wait until you had been separated for five years before you could start divorce proceedings. It does not matter if you have agreed with your spouse to see other people, if you do it on holiday abroad, if they have done it first, or even if you have moved in with your new partner. It is still adultery. Your husband or wife can use your adultery as the basis of a divorce petition as it is one of the five facts that can be used to prove that a marriage has broken down beyond repair. With the party that files for the divorce also usually the one that pays the court’s fee of $318, it’s not surprising that, when a married couple separates because one party committed adultery, it’s the spouse that committed the offence that looks to apply for the divorce in order to shoulder this cost.

Unfortunately, this inevitably causes problems. When any of the three fault based grounds (adultery, unreasonable behavior or desertion) are cited as the reason for a marriage irretrievably having broken down, the petitioner (the individuals that formally requests the divorce) must state that they find it intolerable to remain married to the respondent (the party not filing for divorce). Because of this, it is not possible for someone to file for a divorce whilst relying on their own adultery. By doing this, the petitioner would essentially be claiming that they could no longer reasonably be expected to remain married to the respondent as a result of their own actions – something which the courts will not accept. When couples find themselves in this situation, they’re usually left with two options: the ‘victim’ of the adultery can file for the divorce or the adulterer can file on the grounds of their spouse’s unreasonable behavior. The former is problematic because the ‘victim’ of the adultery feels that they should not pay the court’s fees. The latter can cause problems when the ‘victim’ feels they should not be blamed for the breakdown of the marriage or because they simply have not behaved unreasonably.

Under such circumstances, the logical solution is actually pretty simple: the party that committed the adultery can pay their spouse the fees in question before they file for the divorce. Whilst this would mean that the couple could obtain a divorce on the grounds of adultery, that the appropriate party would be blamed for the breakdown of the marriage and that the person that committed the adultery would foot the bill for the court’s fees, there is still one hurdle that’d need to be cleared: a lack of trust. Once it becomes necessary for the parties to exchange money before the process has even begun it is, in our experience at least, normal for a lack of trust to cause delays. If the parties are still on relatively good terms, this can usually be overcome with little more than simple reassurance. When the relationship has become more fraught, though, the thought of simply handing over several hundred pounds is met with trepidation and a standoff usually ensues. One possible solution here is that the petitioner files for the divorce under the proviso that, following them having received correspondence from the court (and therefore proof that the request was filed and the fee paid), the respondent repays them. In this instance, the petitioner can seek added security by requesting that the courts order the respondent to return these fees to them by ticking the relevant box in section 11 of their Divorce Petition meaning that they can then pursue repayment through the small claims court if necessary. This arrangement should also suit the respondent as they will not be pursued by the court in any way unless the petitioner authorizes the necessary proceedings. Dating might be termed as adultery before the divorce is confirmed – or it may not be.

The significance of both concepts is very crucial. It is not new to see couples moving on with their lives after separation. Fault-based divorces work on the concept of adultery as well. The spouse needs to provide strong evidence for sexual relations of their significant other with someone else. In most states, only clinical sanity is a barrier for legal separation and the time allotted for divorce exceeds a year. Despite that, before this time period, any sexual relations with someone other than your spouse are regarded as adultery. They might seriously affect the provision of property and financial divisions. However, the leniency dates from the time separation began. In most areas, adultery is more of a criminal offense. Timing and recurrence rates, however, are of major importance during such cases. The law’s opinion on this issue makes a big difference and you can, by no means, challenge the law. Signing a separation and beginning to date makes sense both legally and personally. This might confirm the need for divorce. This will also increase the ease of moving on and continuing a new life. Choosing to divorce is rarely an easy decision to make, but escaping a bad situation can feel like a breath of fresh air. For many men and women, divorce provides a rare opportunity for a new beginning.

The way adultery will impact your divorce depends on your state’s laws, which is why it’s wise to hire family lawyers to guide you through this process. For instance, in no-fault divorce states like Utah it is no longer necessary to prove that your spouse committed adultery or abandonment to file for divorce. And while some states do still use adultery as a partial basis for alimony, this is also becoming less common. However, in some states, proof of adultery could have an impact on your divorce settlement. If you and your spouse have separated but not divorced, you may be in a legal gray area when it comes to adultery. Again, consult a family law firm to understand the risks, if any, to dating while divorcing. Unfortunately, some divorces can take years. During this time, you may feel like you’re ready to re-enter the dating world. The best course of action is talking to your divorce lawyer. Each divorce is different, and your state may have specific laws regarding separation prior to divorce.

Why people may date during their divorce

People date during a divorce for a variety of reasons. The most common reason is that it’s a welcome distraction during a stressful time. Gaining positive energy and contemplating future relationships is one of the many reasons people get divorced in the first place. Others may seek out dates for a sense of empowerment that they may not have had during the course of their marriage. Between 40% to 50% of married people will get a divorce, and it’s not a surprise that some people will inevitably date during the divorce process. When you want to discuss your rights when you’re going through a divorce, contact divorce lawyers in your state to give you the advice you need during this trying time. Dating during divorce can have legal consequences both for the divorcing spouse and their new partner. Dating while separated can hold up and complicate the divorce proceedings, can effect custody and visitation decisions, and rarely but possibly, depending on the state, may be grounds for a lawsuit.

Effects on the Divorce

Dating while going through a divorce can have a number of negative effects on the divorce proceedings, both in court and emotionally. Additionally, while every state is now a no-fault divorce state, marital misconduct can still be considered in some situations. Marital misconduct can encompass a wide variety of actions, including adultery and cruelty. During the proceedings, the fact that a dating spouse is already separated will be noted, but that does not necessarily mean the circumstances of the new relationship will not be considered. For example, the judge might disapprove of the dating spouse’s behavior and develop a bias against them. While such a bias is ostensibly unacceptable in the some system, judges are human and biases are natural and even probable in some instances. In addition, in some states the new relationship may be considered in the division of property or alimony determinations, so the dating spouse may not get as much as they want out of the divorce depending on the new partner’s financial circumstances.

This is especially true if the dating spouse begins cohabitating with their new partner during the divorce process. Some states have laws stating that a spouse cohabitating with a partner of the opposite sex is presumed to have a decreased need for spousal support. Dating before a divorce is final is one of the typical issues that cause heightened conflict during a divorce. The other spouse, if they are not dating, may develop the idea that the dating spouse was committing adultery even if that idea hadn’t surfaced before. Or, the other spouse may simply suffer anger and hurt as a result of the limited amount of time it apparently took the dating spouse to recover and move on. Either way, the other spouse may become confrontational, may become unwilling to compromise and obstinate during the proceedings, or, at best, may become cold and distrustful of the dating spouse. These feelings can cause property division to be more difficult, as well as other aspects of the divorce.