Law & Daily Life - The FindLaw Life, Family and Workplace Law Blog

Legal Dangers of Dating Someone Who Is Legally Separated

There are plenty of emotional reasons to steer clear of someone who is separated from their spouse, but not legally divorced yet. They're not ready for a new relationship yet; they're using you to hurt their ex; they might get back together with their spouse; heck, they're probably still living together!

These are all good reasons, and they don't even touch on the legal ramifications of what would still be an extramarital relationship. So what do you need to know about dating someone who is legally separated?

Consenting Adultery

Most of us think of adultery laws as vestigial traces of a bygone era. But not every state sees them that way. Plenty of states -- Alabama, Arizona, Kansas, and New York among them -- still criminalize adultery, although enforcement tends to be lax and the crime is normally classified only as a misdemeanor.

Technically, adultery is defined as sexual contact between a married person and someone other than his or her spouse. And because a legal separation doesn't officially terminate a marriage, sex while separated could be a crime. While you could try and keep your dating PG-13, it might be a better idea to avoid it altogether until the divorce is final.

Dinged in the Divorce

Not only could sleeping with a separated person affect your criminal record, it could affect the divorce as well. While all 50 states offer "no-fault" divorces in which spouses don't need to cite a reason to end the marriage, some states still recognize fault divorces, and the reasons given for the divorce could impact how much the divorce costs and which spouse gets what.

Proving the adultery in court could be costly and time-consuming, making the divorce much more expensive than it needs to be. And a judge could award less marital property to your separated boyfriend or girlfriend, or order them to pay more in spousal support. (Then again, adultery during separation could speed up the divorce process: no-fault divorces generally have mandatory waiting periods before they are finalized, and no such delay occurs in fault divorces.)

If you're worried about the legal ramifications of legally-separated dating, your best bet is to consult an experienced divorce attorney in your area.

Related Resources: