Definition of Legal Separation
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, such as New Jersey, call this a divorce from bed and board. However, spouses are still legally married when they separate by this method.
Definition of Adultery
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, such as North Carolina, make a legal distinction between dating during separation and dating while living together as man and wife. In North Carolina, 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.
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.