Legal separation & adultery

Updated April 17, 2017

Adultery, or the act of having sexual intercourse with a third party while legally married to another party, is a legal as well as moral issue. This is particularly true when a couple is not yet divorced but legally separated. Understanding the legal ramifications of committing adultery while separated is important as it can drastically affect future divorce proceedings and custody issues.

Understanding Legal Separation

A legal separation is when a couple files paperwork with the court stating that although they are still married, they no longer live together or are responsible for joint or communal property. Often, legal separation is a matter of dividing up marital property, establishing payments similar to alimony (called separate maintenance), visitation and custody rights of children and any other practical or legal matters.

Legal separations often happen because the people who are married wish to be legally separate from each other in terms of assets and debts accrued, personal property and living situation but do not want an official divorce for religious, social, financial or personal reasons.

When a couple is legally separated, they are still married and as such, in the eyes of the law, can still commit adultery.

Potential Consequences of Adultery

Often, a legal separation precedes divorce. In some states it is even required to be legally separated for a certain amount of time before a divorce can be filed.

Committing adultery while legally separated can affect a divorce settlement. Having another person around while children are visiting can harm a person's chances of obtaining custody of the children. Money spent on the third party during the separation may be taken into consideration when settlement and alimony payments are due.

The other spouse can establish or change the grounds for divorce from irreconcilable differences to adultery, which can ultimately set the tone of the divorce proceedings.

Proving Adultery

Proving adultery for the spouse making the allegation can be very difficult. Generally, most judges will only accept direct evidence, such as photographs or witnesses. Simply finding a suspicious e-mail or phone number on the spouse's computer or phone is not likely to be taken into consideration when adultery has been alleged.

Adultery is a very serious charge in the eyes of the law, which is why the burden of proof for it is so high.


Further complicating matters is the fact that only some states allow legal separation and the required time of separation prior to divorce can be as long as five years. It is extremely important to remember that the law is not based or decided on emotion or personal circumstance.

Just because a man and his legally separated wife have not lived together in four years and are no longer emotionally attached to each other does not change how the court would view the legal act of adultery during a divorce proceeding.

General Advice

Most lawyers would advise a person not to date while legally separated due to the effect it can have on divorce proceedings or, if he is in a relationship, to keep that relationship away from any children involved. Since laws vary from state to state, as unromantic as it may be, it is advisable to contact a lawyer specialising in divorce law prior to engaging in a serious relationship with someone else while legally separated.

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About the Author

Christina Eichelkruat has a degree in mass communications, emphasis on print journalism. She has been a staff reporter for the "Pahrump Valley Times" for two years and a freelance writer for three. In addition to her published newspaper articles, she has ghostwritten two books and contributed to various governmental reports.