Legal Separation & Adultery

Is it Adultery While You Are Legally Separated?

Some states do not recognize legal separation, and in states where legal separation is legally acceptable, the term has varied meanings resulting in inconsistencies in the laws that govern legal separation.

And the matter gets more complicated when you bring in the Uniform Code of Military Justice into play because this justice system has its own set of rules and laws on adultery among members of the United States Military.

For the most part, however, and in most cases, dating is regarded as adultery before the finalization of a divorce.

But first, what is legal separation?

Legal separation is a legally binding contract between spouses. The separation process doesn’t involve the courts. It might, however, become part of the court decree if the separation ends in a divorce.

In some states, a couple is considered legally separated after the partners sign a marital separation agreement or a separation agreement, and after the couple relocates to a separate home.

But, in other cases, and in most states, the legal separation process is a lot like the marriage dissolution process with one spouse having to file a petition with the court and the judge deciding on matters like support, property division, and custody – as he/ she would in a divorce proceeding. The court will issue a decree of legal separation after the litigation. This is often called the bed and board divorce in some states like the state of New Jersey.


While dating is not adultery – there has to be sexual contact between the married and separated party and someone who isn’t their spouse.

So, is adultery regarded as an illegal act during separation?

Unfortunately, yes. The law regards engagement in sexual acts with someone other than the person you are married to, while still married, adultery. And, it doesn’t matter if you and your spouse agreed to see other people while separated or not.

Although adultery is rarely prosecuted, it is regarded as a crime in some states, and it has a lot of impact in the fault-based divorces. This means that: if after the decree of legal separation is passed and one party commits adultery, the other party can file for a divorce on the grounds of adultery.

But, if you are lucky and live in a state like North Carolina, the state will make a plausible legal distinction between dating while living together and dating while separated. The only catch is that you only get to file for a divorce one year after the separation.

Note that adultery is only punishable in the military if it is construed as a morally wrong act.

  • Negative Effects of Dating While Legally Separated

    • It is emotionally scarring,

    • Easily leads to divorce since adultery is regarded as grounds for divorce in many states

So, there you have it. While separation gives you, albeit a little freedom from your marriage, a slip, in the form of adultery could be all that’s needed to end your marriage.

To start filling out a free marital separation agreement, click here.