Can Married Men Who Are Legally Separated Date Without Committing Adultery?

By Larissa Bodniowycz, J.D.

Can Married Men Who Are Legally Separated Date Without Committing Adultery?

By Larissa Bodniowycz, J.D.

Whether spouses can date without committing adultery while they are legally separated depends on when the separation occurs, what dating activities they engage in, and whether there are any special circumstances like a military commitment on behalf of one or both spouses. The impact that it has varies greatly between states.

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Separation and Adultery

A couple may consider themselves separated as soon as they decide to sleep in different rooms, live apart, or divorce. This is different from legal separation, which is recognized as a formal type with legal consequences.

The laws of the state where a married couple lives determine when the couple is legally separated, and those laws vary by state. For example, a handful of states require a period of time apart from one another before they will grant the couple a divorce while other states do not recognize legal separation at all.

The definition of adultery varies among states, but it typically involves one spouse having an intimate relationship with a third party while legally married. Couples who are separated, whether informally or legally, are still married in the eyes of the law, regardless of how independent their lives have become. This means that if either spouse has a sexual relationship with another person during the separation period, they have probably committed adultery. But if one spouse begins dating another person with no physical contact involved, they probably have not committed adultery.

Impact of Committing Adultery

The impact it has during legal separation depends on the state the married couple lives in. In some states, it is a criminal offense. However, even in these states, criminal charges are virtually never imposed. Even when it is not a crime, adultery can impact divorce proceedings. In states with “at fault" divorce systems, adultery is one of the possible grounds for divorce. In these states, the fault of one spouse can justify granting the other spouse a greater amount of alimony or percentage of marital property than they would otherwise receive. However, some states exclude adultery that occurs after separation from having an impact on alimony and property distribution.

Even in no-fault states, it is possible for adultery to impact divorce decisions. For example, if a spouse neglects their children because they are distracted by the new person they are having sexual relations with, a court can consider this in deciding which parent should receive custody of the children. Similarly, if a spouse squanders a substantial amount of marital funds on things like hotel rooms and buying the new person they are dating things, the court could take this into account when diving marital assets.

Military Commitments

In addition to state laws, a spouse who has a military commitment is subject to military rules and regulations regarding adultery. If this happens while married, it is a criminal offense under the Uniform Code of Military Justice. Additionally, it can result in one's rank being stripped. If it occurs during the separation period, then the consequence could be mitigated or even avoided. However, this is not guaranteed.

If you are concerned that dating during legal separation will have a negative impact on your divorce proceedings or life, the safest option is to wait until the final divorce decree to start dating again.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.

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