I have a quick legal question for any dopers familiar with marriage laws. Two friends of mine are having marriage problems, and have recently separated. The male friend basically has left with the intention to eventually seek a divorce. However, they filed no formal separation papers. Are they ‘legally’ separated? My male friend seems to think so and has gotten himself a girlfriend. My female friend is saying that they aren’t legally separated and that he’s committing adultery. I have no idea. Anyone know?
Someone who knows better will probably come along and tell me I’m full of crap, but AFAIK, as long as they’re still married, having sex with someone else is adultery, whether they’re separated or not. Remember, however, that adultery is not a crime. It may be grounds for divorce, but no one’s going to get arrested for it!
I believe there are legal seperation papers that can be filed, then it wouldn’t be considered adultery. Now, as was stated, it can be grounds for divorce, but that’s about it. As long as there isn’t a great deal of marital property or children involved the adultery won’t amount to anything in the whole scheme of things.
A little more research in the Code of Virginia, just for the sake of an example, yields the following: adultery is defined as a married person voluntarily having sexual intercourse with anyone who isn’t his or her spouse. There are no qualifiers regarding separation.
On the other hand, it is a criminal offense, though only a Class 4 misdemeanor, along with such heinous crimes as unauthorized use of a milk crate, trespassing on railroad tracks, and using a white cane near a roadway if you’re not actually blind. Then again, I have to wonder when the most recent prosecution for adultery took place in the state - I’ve never heard of anyone being charged with, or convicted of, that crime!
IANAL etc. The correct answer to the OP is impossible to give without knowing the state in which the married couple resides or, if different, the state in which papers have been or will be filed. Family law is one of the most variable areas of law by state and none of the answers offered here can be taken as authoritative.
Adultery is a crime in Wisconsin, and there have been prosecutions for it in recent memory. In light of the Supreme Court’s various rulings regarding the right to engage in sexual activity free of unwarranted government intrusion (c.f. Griswold and Lawrence), it is an open question yet as to whether adultery laws are constitutional.
If your male friend has some concern about whether his activity is eithr legal or detrimental to his financial well-being in case of divorce then he should consult an attorney knowledgable in family law and licensed in his jurisdiction. If the female friend has some concern about the husband’s having sex with someone else being illegal then she should contact the police to see if adultery is a crime and then file a police report if she is so inclined.
What many people call a legal separation is really a period of limbo after the divorce proceeding are commenced and before the actual decree is entered. What make it “legal” is the entry of temporary orders that usually specify the custody of any children, visitation rights and child support obligations. Sometimes it will also involve temporary alimony/spousal support, and a determination of who pays what bills, who gets to live in the house and who stays the hell away from whom.
As a general proposition the separation a and temporary orders have nothing to do with the rights of third persons, like creditors, some of whom can elect to go after either spouse or both of them. For instance either can be held responsible for medical care of the other or any children, although one may have the right to contribution or indemnity from the other.
The short answer is that, except when there is a decree of separate maintenance (a related but different animal) there is no such thing as a legal separation. Its like death and pregnancy, you either are married or you aren’t. At least that is the case in my jurisdiction.
Thanks everyone for the great replies! If its helpful, the couple live in Maryland. I know that Maryland requires a year of separation before you can proceed with a divorce. I can’t believe that they would expect you to be separated a year and be celebate though.
There are children involved, and both parents are sueing for custody. I assume by the answers so far that the husband is shooting himself in the foot though, as from what I’m hearing he would be considered to be committing adultery, which I’m sure will weigh heavily against him in his custody suit?
The main part of my confusion here is that I’m friends with both the man and the woman. He is telling me his lawyer is saying that they are separated and he can pretty well do as he wants…that it won’t effect his case at all. She is telling me that her lawyer is saying just the opposite…that they aren’t separated at all, and that he’s committing adultery. So far in this thread, everyone is saying the same thing as her lawyer…that he is committing adultery. I don’t see how two lawyers are saying two so radically different things on this…isn’t the law pretty clear?
In Maryland, you have to have grounds for divorce; there’s no no-fault divorce. One of those possible grounds is adultery. It may very well be that committing adultery will help your friend get a divorce.
Why not? If the law makes adultery illegal, then it expects that you will not have sex with anyone except your spouse, no matter what the circumstances, even if your spouse is unwilling or unable to engage in sexual activities.
One year of enforced celibacy is hardly an extreme hardship. Many people do it without having to anyway.
There’s absolutely no reason to assume this. What does his lawyer say? Well, you said it yourself …
If this is all these two lawyers have said, then they have not contradicted each other. He very well might be committing adultery so far as the law is concerned. However, it very well may have no detrimental consequences.
I as divorced in MD. Re your OP I a just called one of the best family law atty’s in the area (and a friend of mine) and posed your question to them .
Here is your answer:
Effectively both attys are correct, but your your friend’s atty is most correct in a terms of it’s (seeing another women) practical impact on the divorce proceedings. Although she can claim adultery, it will have no legal bearing on custody rights or marital property division under Maryland law.
The atty did give the common sense caveat, however, that carrying on an open relationship of this kind in a contentious divorce that antagonizes the other partner is generally recommended against, as a massively pissed off SO is not going to be agreeable to an amicable settlement and will often drag the proceedings out farther than necessary, and ultimately the cost of doing this often (in one form or another) comes out of the primary breadwinners pocket in the end.
The advice is to “cool it” and be low key re any new relationships until the divorce is finalized.
By the way, as a cynical sidenote, it is entirely unsurprisnig that the wife’s atty is telling the wife she can sue him for adultery. While the atty is quite correct on this issue, the practical impact of this will be nil re custody or property outcomes, but it will satisfy the wife’s desire for retribution, and will allow the atty to bill many thousands more before this divorce is over.
Well smear my ears with jam and tie me to an anthill - I would not have suspected that! Know any details? And why do I have the feeling the case probably involved people named Brandine and Cletus?
Its interesting to me that both atty’s saying essentially opposite things could be correct. However, I definitely understand this part and think it really explains how this could be:
Thanks for the great info everyone. I think I have a better handle on this now than I did before.
Let me ask another quick question. Is it the same for a woman as a man in such cases? Say my female friend also took a boyfriend/lover. Would it adversely effect her case as far as custody goes, because she is a woman, would it simply balance out (i.e. he’s doing is, so can she), or would it have no effect at all? Do the courts weight things against a woman more than a man in these cases as far as custody goes?
Personally I think the best advice is for both of them to be discrete about whatever they do…i.e. not openly have a boyfriend/girlfriend, so as not to antagonize the other. Unfortunately my male friend isn’t likely to follow this advise, though I think my female friend will.
I am not licensed to practise in Virginia and I am not your or your friends’ lawyer. My WAG is that most courts these days are not going to weigh any kind of sexual misconduct heavily in deciding custody. After all, it is a divorce and divorce has to be caused by something right? I would say that adultery is probably a rather common cause for divorce. I would think this is especially the case in a fault state such as Maryland. Again, this is just a WAG.
(BTW, the word you’re looking for is “discreet.” If they’re separated I should think their activities are already discrete. :D)
Personally, I should think that you personally are better off leaving the advice-giving up to their lawyers. (This is not a legal opinion.)
I think you misunderstood. No one has said that his relationship with another woman would have any effect on custody or support. If you’re asking if women are treated differently than men under the law in these cases, I don’t know for a fact that they aren’t, but it seems to me that such a distinction would violate the 14th Amendment. Custody is going to be decided based on the best interests of the child. If one parent is a philanderer to the extent that his/her parenting abilities are compromised, it is an issue that could conceivably be brought up in court.
In New York, someone who is cheating cannot claim adultery as a grounds for divorce. It might be the same in Maryland.
P.S. I am not a lawyer in your jurisdiction and nothing I’m saying here should be construed as legal advice.
Here is an article that mentions the Virginia case and the law’s treatment of adultery generally. Apparently, in some states adultery could affect the division of property and alimony. The article also talks about the effect of Lawrence on criminal laws against adultery. The man in Virginia pled guilty, but I suspect the law couldn’t stand up to a U.S. Supreme Court review.
I realize you aren’t a lawyer in Maryland, and that its your WAG, but I appreciate your input on this. I’m starting to get a handle on this thing…at least a little better. I suppose I always thought that adultery would factor in heavily in a custody case.
Well, I’m actually in New Mexico…my friends are in Maryland. So it would be THEIR jusridiction. Again, I realize you also aren’t a lawyer in Maryland, and again I really appreciate your thoughts on this. Its not something that I know almost anything about (obviously).
Yes, thats what I was asking. I figured in principal it would be the same…what I was asking if in practice if its different for a woman than a man as far as adultery and child custody goes.
I have read all the advice given. I would much rather leave all matters pertaining to this issue between the two parties at hand - and our respective lawyers. Although I do thank you all for taking time out to concider this issue, being as I feel this conversation is going way out of hand, and some of the issues that are talked about here, isn’t what is going on, not exactly at least, on the real side of things.
Warm wishes,
Angel
P.S.
And for the record, I have no other “person” in my life. Thanks.
