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"Separated" Means It's Fine to Date Under Certain Circumstances

Once a married couple "separates" it is fine to date others, however, the circumstances must be considered.


I am often asked by clients that are newly separated whether or not it's ok to date other people. The answer is generally, "yes." However, I think that this subject warrants some discussion about finer points.

First, I have blogged before about separation. (See link to blog article). Separation means that there is an expressed intent by the parties to be apart from the other party. A physical separation is usually a component, but not essential aspect. A stoppage to physical intimacy is often required, but again, brief sexual episodes may not be enough to show a reconciliation. Economic separation is also required. Canceling joint credit cards, opening new individual bank accounts, titling cars over to one party or the other, and otherwise representing to third parties that you are "separated."

Next, if you are separated, engaging in sexual acts with others is not adultery. As such, it cannot be considered as a ground for a "fault divorce." Further, it should not be considered as a factor in determination of alimony. As a general rule, adultery during marriage is presumed if there is inclination and opportunity. This requires that both parties to the adulterous conduct are disposed or inclined and there is opportunity to satisfy such inclination. Mere "flirtations" may not be sufficient.

Finally, and this is the critical point, adultery may be proven if there was inclination and opportunity PRIOR to the separation and the "adulterous party" has continued in the relationship after separation. That evidence may be used to show that adultery was occurring prior to the separation. In this sense, it's not "ok" to date after separation. Rather, a relationship that has begun AFTER separation is not adultery. Therefore, it may not be considered as evidence against someone in a divorce or alimony/support action.