What Is Legal Separation?
In New Jersey, a legal separation is typically an agreement, usually contained in a Separation Agreement, whereby the parties agree that they will no longer cohabit, but nonetheless remain legally married. Many people make the mistake of thinking a legal separation is like a divorce, however, that is not the case. There is a legal process known as "divorce from bed and board" (also known as a limited divorce), which will terminate the economic aspect of the marriage, however, it does not terminate the marriage and thus, to event he parties wish to marry someone else, they must obtain a final divorce .
Even if you live with your spouse, if you have a written agreement (or at least provide a written notice) that you intend to live apart, courts have ruled that this may amount to "separation" for purposes of determining whether "adultery" has been committed.
In the past, a legal separation was a very popular option for couples seeking to end a marriage. Usually, the parties split up financially, but still lived in the house together or kept the marriage in legal terms to keep health benefits, tax breaks, and other financial advantages that a marriage brings. Separation Agreements that became part of a divorce contract may also be used to award other settlements to the party who may not be divorce yet. In some states, the general laws of separation apply, so physical separation doesn’t matter here.
What is Adultery Legally?
Adultery is often a complex term, with legal and emotional nuances that differ from the dictionary definition. Adultery is generally defined in legal terms as "voluntary sexual intercourse between a married person and someone other than his or her current spouse." Though more difficult to prove than it is to define, adultery is still relevant in divorce law. Additionally, proven adultery can affect alimony in some states.
Depending on the terms of the separation agreement, your spouse may believe himself/herself legally free to date if your divorce is a fault divorce. In a no-fault state, except as stipulated by prenuptial agreement of other contract, adultery will likely have no bearing on your divorce.
Legally Separately and Adultery: A Jurisdictional Issue
The concept of adultery also varies from state to state where the couple is legally separated. While some states use a legal separation as proof of cheating, other states do not. For example, in Alabama, the mere presence of a legal separation agreement goes to settlement of property and not the issue of adultery. In contrast, in Delaware, the Court has recognized marital misconduct that occurred during the period of legal separation, and that such marital misconduct is equally as relevant as marital misconduct that occurred before separation. In fact, in a 2012 case, Williams v. Smith, the Court established a bright-line rule that marital misconduct occurring after one year of separation is pretty much irrelevant for purposes of the distribution of marital property in Delaware. The Court reasoned that all equitable distribution factors are applied equally. In yet another State, Florida, the Court established a two-year limitation, stating that marital misconduct after the date of filing for divorce is pretty much relevant for purposes of equitable distribution. Interestingly, later on, in 2010, the Florida courts reversed themselves. Now, marital misconduct after an irretrievable breakdown of the marriage is still relevant. While the Court acknowledged the two-year rule stating that it could no longer create such a bright-line rule because doing so negated any analysis of all the factors and virtually eliminated the spousal award (if any) to the less-monied spouse, while nevertheless rewarding the other spouse for his or her dissipation of marital assets. The statutes governing equitable distribution do not define the term «adultery» and courts have always considered this as a factor. While the definition of adultery varies from state to state, generally speaking, courts have found adultery to be the voluntary sexual relationship of a person who is legally married to someone else. Courts have held that consensual illicit sexual relations that result in social public scandal and harm to the innocent party carries more weight as to the irretrievable breakdown of the marriage in that respondent has violated the covenant of marriage and degraded the spouse to the level of a ‘non-entity.’ On the flipside, when both parties have engaged in extramarital affairs, courts become concerned about whether the admitted conduct was too strong as to be classified as adultery.
How Adultery During Separation May Affect Your Divorce Proceeding
The effects of adultery during legal separation can extend beyond the pain of emotional hurts. The courts traditionally view alimony and spousal support as an opportunity to right the financial wrongs of the marital relationship. In many jurisdictions, adultery is a typical ground for a divorce. Because traditional divorce separation agreements can take a great deal of time to execute, many spouses choose to pursue a legal separation rather than a divorce. Legal separation allows spouses to outline terms for their life outside of the relationship while retaining the ability to reconcile with their spouses if they choose.
Legally separated couples are still married in the eyes of the law, but their legal obligations are minimized. On the other hand, spousal support and alimonies are rarely affected by a legal separation. After a legal separation, adultery still remains the most common grounds for divorce, even though it takes a much longer time to do so than it would otherwise have taken . Even though adultery is a common ground for divorce, living together during a legal separation while committing adultery could have a considerable impact on the divorce process.
First, it is likely that the spouse with whom the other has committed certain extramarital affairs will have less forgone opportunities available to him/her because he/she spent his/her time with someone outside of the marriage. Second, unless the spouses have signed an enforceable agreement, it is likely that the spouse under suspicion of infidelity will have a hard time convincing a court that he/she should be entitled to alimony or spousal support. Courts tend to lump adultery with misconduct and usually believe that misconduct of any sort should forgo any entitlements the offending spouse may have once had to the marital property, benefits, time-sharing plans, see below, or any other issues.
If you have questions about how adultery during legal separation can affect the divorce process or specifically your case, do not hesitate to contact the lawyers at the Law Offices of Mark A. Berkowitz.
Moral and Ethical Issues
The tenor of a legal separation agreement frequently indicates that the parties should remain separated for a period of time to test the marriage, reconcile or at least think about which way they want to proceed. Morally and ethically, they should be on the same page. Their intent is to be married and start all over again and they should not be sleeping with or dating somebody else while they are working it out. Of course, there are those who look for a moral justification for their behavior and/or look to the grey areas and find loopholes. They might argue as follows: "I have a right to sex. I am legally separated." My response is "Yes, but you have a right to a lot of things and that does not mean that they should act on those rights." Or "I am still seeing my spouse and we are reconciling. If we are sleeping with others then there is no motivation for us to reunite. If we are sleeping with others then who is your spouse going to reconcile with?" It is a battle I have had many times in the past. The answer is that it depends on how people feel, what their values are and what they think is right. Some people think it is perfectly ok to date the separated spouse and some people find that unethical and immoral.
Tips for the Legally Separated
If you are legally separated and either dating someone or considering dating, it is a good idea to consult with your lawyer regarding this issue. You should also consider the possible impact of a new relationship on your legal separation.
The practical advice set forth below is directed to persons who are legally separated and are either dating or contemplating dating someone other than their spouse.
1. Consult with your lawyer. While many people in the United States are legally separated, only a small percentage of those people have consulted with a skilled matrimonial lawyer concerning their rights and obligations after obtaining their legal separation. Even if your legal separation agreement is silent on the issue of dating (which is often the case), you should consult with an experienced matrimonial lawyer to ascertain your rights with respect to divorce and spousal maintenance/ support.
2. Be honest with yourself and your spouse. If you believe that you and your spouse will ultimately reconcile and reunite, it is probably not good for you to date someone else. It is possible that your conduct with someone else could jeopardize the chance of a successful reconciliation. On the other hand, if you believe that your marriage is over and obtain an unambiguous and unqualified legal separation, it seems that you should be free to date anyone that catches your fancy.
3 . If you choose to date someone other than your spouse, be conscientious in your choice of people with whom to associate. Do not date a person whose behavior is destructive or harmful to you. Do not date someone who is married. Do not date someone who is as interested in partying as you are. Your choice of new friends will almost certainly say something about you. Pick wisely.
4. Do not date a person who is a friend of your spouse. If you and your spouse have close friends, you should avoid dating someone who is also a close friend of your spouse’s. The problem is threefold:
A. Your spouse may feel betrayed because of your relationship with his/her friend;
B. You may feel awkward associating with a person you have dated when you are with your spouse; and
C. It is likely that you will provide your spouse with evidence against the friend. Can you honestly tell your spouse that he or she needs to be nice to your friend because you have been dating your friend? Does your friend really want to be in the middle?
5. Be prepared for changes. You may begin to date someone and believe that you have met the love of your life. You could be wrong. This happens all the time. In addition, your new friend could suddenly break up with you. When this happens, be prepared to get through the bad times and reconcile your sadness. Don’t feel guilty for being sad if it was a serious relationship.