Separated Spouses? Beware!

November 7, 2018

Adultery v. Adultery


If your spouse allegedly commits adultery prior to either of you filing for divorce, and then you both separate during the divorce process, but you decide to move on into a new relationship, is it adultery? Can it have consequences?


Fault-Based Divorce and No-Fault Divorce


It is only recently that divorce law has allowed divorce on no-fault grounds. Just because both spouses agreed to seek divorce, that would not guarantee them a decree of divorce; one of them had to be the innocent party and the other had to have breached the marriage contract. What was acceptable grounds for divorce needed to be defined by the legislature of the state, not the individual seeking divorce.


Fault grounds for a divorce have included adultery, abandonment, neglect, commission of a felony, intemperance, and cruelty. All states allowed divorce on grounds of adultery, but not every state included all the above-listed grounds, some being stricter or more lenient. And even then, divorce on grounds of adultery may have special rules in some jurisdictions.


In the state of New York, parties were only allowed a divorce on grounds of adultery until almost 1970. California, on the other hand, was the first state to adopt a no-fault grounds system. In 2015, the state of Maryland passed a law to allow divorce on grounds of mutual consent. ‘Irreconcilable differences,’ is used for a no-fault divorce often enough.


Is Your Adultery Okay, If They Committed Adultery first?



The New Hampshire Supreme Court has an answer for that.


In the case of Ross v. Ross, the wife filed for divorce. The husband counter-claimed for divorce, on grounds that she committed adultery. But she then filed a Motion to use the defense of recrimination, stating that he should not be able to pursue divorce because of her adultery, since he committed adultery too.


Neither party was innocent. With the wife’s defense of recrimination, the husband could not obtain a divorce on the same grounds for which he was also guilty. But the end of the whole process granted the couple a divorce, due to irreconcilable differences—a no-faults divorce.


But the husband appealed this decision, arguing that her adultery, not his own, caused the breakdown of the marriage. The Supreme Court later determined that the separation of the couple was irrelevant, because until they had received a decree of either divorce or an annulment, they were still legally married.


Conclude from this, please, that until you receive the decree, signed and dated by the courts, you are not cleared to start that new relationship just quite yet, or you may be committing adultery. If you have any questions in regards to this post, or in regards to any of these legal matters mentioned in the article, please contact our office today to schedule a consultation.


For the full article, 'Separated Spouses Beware: Post-Separation Adultery Bars Fault-Based Divorce,', seen here, please visit:





We assist individuals and families with family law issues and other legal concerns in Southern Maryland, Washington DC, and throughout the region. For more information about how Fanning Law, LLC can help you and your family, contact Bill Fanning at Fanning Law, LLC - The Offices of William C. Fanning, Jr. - 301.934.3620 or at





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