I slept with my husband — are we still separated?

There are a lot of divorce-related things that are difficult to discuss, but it’s important to hire an attorney with whom you can be honest. There are not a whole lot of things that feel worse than finding out – at trial or some other inopportune moment – that you don’t really know what’s going on with your client’s case because your client hasn’t been honest with you.

Most things are manageable, especially if we have time to prepare, in advance, to face some of the less perfect facts. Honesty is critical, even though it can be difficult. The repercussions of not being honest, and of not allowing your attorney to prepare for a different scenario than they’re anticipating, can be severe.

We’ve talked over and over again about separation, and why it’s important, in both fault cases (except adultery) and no fault cases.

At the end of your divorce, whether you have a full out trial or a divorce by affidavit, you’ll have to testify, under oath and under penalty of perjury, that you and your husband have been separated for one year or six months, if you meet certain criteria.

Separation is important, because it makes up the foundation of many of the grounds for divorce. Yes, even in the fault based cases, with the exception of adultery, you have to be separated for one year before you can finalize your divorce! So, needless to say, separation – and proving you’ve been separated – is super important. It’s not because the judge is a stickler or is being mean; it’s because the statute requires that certain burdens be met, including your period of separation.

Sex is one of the things that our clients often find difficult to discuss, and I can certainly sympathize. No matter what, it seems that it brings out embarrassing or unflattering truths; probably, ones you’d prefer not to have to discuss in the light of day.

But, because having sex has a lot of implications in the divorce context, it’s relevant, and you should be up front with your attorney about what’s happening. One of the things we’ve found that women are often loathe to admit is exactly how often, during separation, they have sex with their husbands.

When I bring it up, which happens most often at my seminars, women seem shocked. They’re separated! They’re not having sex! They’ll never have sex with their husbands again.

And, yet – it keeps happening. And let me say, at the outset, I’m not here to judge. I really don’t care. I just DO need honesty, so that we can make effective decisions about your case and not set you up to waste money unnecessarily.

I had sex with my husband while we were separated. What does it mean?

Let me say, first and foremost, that it’s okay. This is a complicated and confusing time and, for many people, it’s easy to fall back into old habits. It’s easy to seek out reassurance or comfort from someone who used to be a source of reassurance and comfort. It’s normal that these things have a little back and forth before they’re either back or forth, if you catch my drift. Separation is not always a linear process, and we’re kidding ourselves if we think that it is. It’s not always anything.

But that doesn’t mean that it doesn’t have an impact on your divorce case, and, for that reason, transparency and honesty is important.

What does separation mean?

Separation happens when you and your husband (1) form the intent to separate, and (2) stop cohabitating.  Though only one person has to intend to separate, and that the separation should be permanent, you’ll both have to stop cohabitating.

Cohabitating means living together as husband and wife, so, necessarily, that includes sex. Specifically, you should stop having it.
It’s not a perfect world, though, and whether you live separate under the same roof, or you live in completely separate physical spaces, that doesn’t mean you absolutely will not have sex.

Does it mean that you’re not separated? It’s hard to say. Probably once is okay, but if it’s a repetitive thing, maybe you’re not. Do you even WANT to be separated? Maybe it’s worth exploring some of these issues with a therapist, if it’s a repetitive thing. You wouldn’t be the only spouse I’ve ever seen who actually didn’t want a divorce and, even if you do want a divorce, that doesn’t mean that it’s easy. Especially if you and your intended ex-husband have children in common!

In general, if you and your spouse are separated, you should be living as legal strangers who live in completely separate physical spaces, regardless of whether you’re living under the same roof.

Legal strangers don’t have sex with each other. Well, they could, but you shouldn’t, in an ideal world. You also shouldn’t be having sex with anyone else, because you’re still legally married and post separation adultery is still adultery.

I know, I know. It’s unfair, and you’re in this sexual no man’s land. But you’re married until you’re divorced, and so not entirely free. But you’re also separated, and part of that period of separation means that, whether you have a divorce trial or pursue an uncontested divorce by affidavit, both you and a corroborating witness will have to testify about how long you’ve been separated.

An isolated incident is one thing, but a regular, reoccurring pattern is another. Remember, you’re separated – with the intention of that separation being permanent – and that separation is the basis of which your grounds for divorce are formed.

If you have any questions, or if you need clarity about your specific situation, feel free to give our office a call and schedule a one on one consultation with a divorce lawyer. I know, it’s difficult to discuss – but, trust me, we’ve heard worse!

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