Any married person who has sex with someone who is not their spouse while they are legally married could be faced with a complaint for divorce based on adultery and be forced to go through the uncomfortable process of defending against it.
PROCEED WITH CAUTION
If you are planning to file, or you or your spouse has already filed, for a “no-fault” divorce, e.g., you have lived separate and apart from your spouse for at least 6 months if you don’t have kids, or 12 months if do have kids, then you should proceed with caution. If your spouse finds out you have begun a sexual relationship, then they could amend their complaint for divorce to make it based on fault, which could impact things like spousal support, equitable distribution, and child custody and visitation.
If a relationship truly started after the statutory waiting period and both parties were living apart during that time with the intention to file for divorce (and there is clear evidence of this intention), then it may not impact the outcome much. But there is no guarantee. Alternatively, if the parties were separated for a short time and perhaps only one party intended to pursue a divorce, then there is a risk that a relationship that starts during that time could create an incentive in the “non-cheating” spouse to seek a fault-based divorce, especially if they were not the party initiating the separation. If the spouse who did not seek separation or intend for divorce starts a sexual relationship, that could also create grounds for the other spouse to pursue a fault-based divorce against them, even if they had previously been fully committed to the marriage before the separation. It can get complicated.
Another common situation is when the parties have entered into a Marital Separation Agreement. These agreements will often include language that neither party will pursue divorce on fault-based grounds, or that either party will be freely able to associate with others or “live as if unmarried.” These contracts provide some level of protection but keep in mind that you are still married until the divorce is finalized, and adultery remains a crime.
GO FOR IT
You know your spouse is having a sexual relationship with someone that is not you, you have the evidence to prove it, and you don’t really care all that much. Maybe your spouse admitted it publicly or the act is captured on video or audio. Maybe all three. You plan to file or have already filed for divorce under a no-fault ground. In this situation, you can likely go ahead and have a relationship with whomever you want. Your spouse cannot pursue an adultery claim against you because they are committing adultery themselves. But remember the timeline matters. If your spouse’s adultery happened in the past and you reconciled afterward (e.g., had sex with them at any point after they confessed), then you may have defeated your own claim of adultery against your spouse through a doctrine called “condonation,” and now, if you start an adulterous affair, you could be the one being sued.
We highly recommend you seek advice from an attorney that can help you with your divorce, regardless of your circumstances. Even in an uncontested divorce where the parties agree on all the issues, and it may seem like the divorce proceedings are a mere formality, it is still encouraged to work with an attorney to increase the chances of a positive outcome. This is a difficult time in your life, and it is crucial that you have an experienced lawyer in your corner who will serve your family with compassion, trusted advice, and fearless advocacy. Our attorneys are skilled in advising clients on matters such as the grounds for divorce (adultery, abandonment, etc.), child custody and visitation, spousal support and child support, and the division of marital property.
To learn more about divorce, visit our Divorce Law page.
By: Maxwell Hand