Separated Spouses and Sex, Part 1

            This is the first post to the Hickory Family Law Blog, so let’s jump right in with a common and controversial topic:  when is it okay to have sex after you separate from your spouse?  This issue comes up often as people transition from married life back to being single.  Dealing with the hurt and pain that usually accompanies divorce, in addition to the practical issues like finances and custody, makes this is a tumultuous time for many people.  North Carolina requires a one-year separation period before spouses can file for absolute divorce.  During this separation period, it is not unusual for one spouse to want to hold on to the marriage, while the other is ready to move on with life and begin dating again.  It is important to know that sex during the separation can cause many problems and can have a negative effect on your divorce.

Sex With the Ex

            Under the North Carolina statutes, isolated instances of sex with your separated spouse do not constitute a reconciliation that would cause the one-year separation period to start over again.  Resuming a regular sexual relationship (as opposed to isolated incidents), however, can be one factor a court would consider in deciding whether a couple has “resumed the marital relationship,” thus restarting the one-year period.  While you and your spouse may want and mutually decide to reconcile, be aware that resuming a sexual relationship with your separated spouse may have an effect on when the court finds that you were legally separated from your spouse for purposes of post-separation support, divorce, and equitable distribution if the reconciliation is not permanent.  With all of the other complicated emotional, financial, and legal issues involved in separation and divorce, having sex with your ex can make things significantly more complicated and confusing.  It is important to think about the consequences for yourself and your divorce proceedings before resuming a sexual relationship with your separated spouse.  If it has already happened, or you are considering reconciliation, talk with your lawyer about the effect your choices can have on your case.

Criminal Adultery

             Now that we have addressed having sex with the person from whom you’re separated, let’s talk about sex with other people.  Under North Carolina law, having sex after separation, with someone other than your spouse, constitutes the crime of adultery.  Believe it or not, North Carolina General Statutes § 14-184 makes adultery a Class 2 misdemeanor.  Enforcement of this statute is rare, but it is common for sex during separation to affect negotiations and lawsuits.  A relatively amicable divorce proceeding can turn nasty very quickly if one spouse finds out that the other has already begun a sexual relationship with another person.  This can cause resentment and bitterness that may encourage the “left behind” spouse to be more difficult in negotiation and legal tactics.  While this law is rarely enforced, committing adultery does mean that you risk having a criminal record, which could impact your job, your custody case, and the judge’s perception of you.  While you are separated, it is important to conduct yourself in a manner that will not reflect poorly on you in the eyes of a judge whose decisions have significant impact on your future.

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