Can you get married to someone else while you’re separated?

Posted By Max Soni, Uncategorized On July 1, 2018

It’s not uncommon for two people to start dating during a separation. After all, a separation is really a formal step that is necessary before a divorce. Some relationships might progress rapidly, though, and there can be a certain desire to formalize them as quickly as possible. Rather than waiting for the court to get through with its work, you might stop and wonder whether it’s possible for you to go ahead and get married. The honest answer might not be what you want to hear, but it’s important that you’re aware of the reality of the situation.

The Simple Answer

If you’re looking for a very simple answer to this question, it’s simple – you can’t get married to someone else when you are separated. A separation is not the same thing as a divorce, and thus anyone attempting to get married would theoretically be committing the crime of bigamy when making an attempt. It’s possible to do this by mistake, of course, but it’s very important that you understand that you cannot be legally married to two people at the same time. As such, it may be important to discuss separation in greater detail.

What is Separation?

Legal separation is a very specific concept in the law. It is defined by three elements – that the parties are living apart, and that they are doing so due to a court order. This is the formalization of a living arrangement that many couples have either before a divorce or before reconciliation, and the involvement of each element is actually quite important. This is an agreement that must between the two parties, but it is more importantly not an agreement that brings a marriage to its end. As such, a separation’s elements must be looked at in order to understand it better.
The first element, living apart, is perhaps the least important of all the elements. It is theoretically possible – though tricky – in some states for the parties to be legally separated but to still be domiciled in the same household. It is also possible for two people to live at completely separate addresses and to lead totally separate lives while not having a legal separation. It is, however, this distance that tends to make other relationships very difficult. if you become involved with another person, it can certainly feel like your marriage is already over.
The second element, the court order, is somewhat more important. This makes the separation into a formal arrangement. In states that still have at-fault divorces, this arrangement does not take adultery off the table – those who date and have sexual relationships during the separation can still be divorced on those grounds. In other states, though, the separation agreement has no real bearing on whether or not you can get into a relationship. The legal agreement is often a precursor to divorce, especially in those states where cause is needed. An agreed-upon period of separation is often the only cause needed for a divorce in those states. Because the seperation is something that goes through the court, you must also assume that the state is aware of your marital status during the entire period of seperation.
The third element is the most important for this question, though. A separation is not a divorce. A divorce ends the legal union between two people. This not only leads to a division of assets and the necessity of custody agreements, but it also severs the legal bond between two people. When that bond is severed, either party is free to marry. In fact, that freedom is so important that neither former spouse has any legal grounds to stop the other party from marrying a person. While the separation is still in place, though, the marriage is still intact.

What to Do

If you’re looking to get married while still separated, it is important that you consult with an attorney to find out your state’s grounds for divorce. The last thing you want is to be accused of adultery and to have those grounds used against you in your divorce proceedings. Instead, it’s often best to try to move from a separation to finalizing the divorce. This can be difficult, but it is really the only way you’ll be able to move forward with your new wedding plans.
You cannot get married if you are already legally separated. Doing so would be against the law. Remember, a separation is not a divorce even if it feels like one. Before you become involved with another person, make sure you are aware of the impact that it might have on your current marriage and on your future divorce. It’s always better to be safe than to be sorry in these situations.

Can we continue to live in the same house if we’re separated?

During a separation or divorce, who gets to remain in the family home is often a source of contention amongst couples. Both parties usually have significant time and money invested in the home, contributing to a strong emotional connection to the physical structure. While many couples choose to live apart during a separation, some prefer to live in the same home until the divorce is finalized. Doing this requires open communication and respect, and in some states, couples have to live apart for a certain amount of time before the divorce can be finalized.

Legal Implications

Living together during a separation isn’t always possible, depending on the state in which a couple resides. Some states, like North Carolina, require spouses to live apart for a year before a divorce can be finalized. Other states allow spouses to file for divorce based on fault grounds, which doesn’t require them to live separately for a certain period of time.

In states that allow spouses to live together during a separation, it’s best to establish boundaries both physically and emotionally. This may mean having two separate entrances to the home, sleeping in separate bedrooms, not attending social functions together, clearly stating to family and friends that they are no longer together, and avoiding any other situations that may make it appear like they are still acting like a married couple.

Reasons Couples Choose to Cohabitate During a Separation

Living together during a separation can be extremely challenging. Unless the split is amicable, couples generally only continue living together out of necessity. Oftentimes, spouses struggle to spread their incomes to accommodate two homes. In other instances, children may be involved and neither spouse may be willing to leave until custody has been established.

Most states are 50/50 when it comes to dividing marital assets. If one spouse decides they want to keep the house after a divorce, the other spouse must be compensated either financially or through another means for their share of the house. This may mean the spouse that keeps the home has to give up rights to the other spouse’s 401K, a portion of their savings account, or another financial asset.
In some cases, one spouse may be worried that leaving the home will give the other spouse reasons to site abandonment or desertion as grounds for a divorce. If they are the spouse earning a higher income, they will often be held responsible for continuing the mortgage and insurance payments on the house until a settlement agreement has been reached.

Whether or not a couple lives together during a separation, many factors go into determining how property is divided during a divorce. Some of these factors include:

  • The length of the marriage.
  • The financial contribution of each spouse towards the house.
  • Each spouse’s ability to maintain the property after the divorce.
  • If children are involved, which spouse will have primary physical custody of the children after the divorce.

How to Make it Work

Unless physical or emotional threats are involved, couples can successfully navigate living together during a separation if both parties are committed to making it work. If domestic violence is an issue, the first priority of the victim should be getting to a safe space, whether or not they are concerned about keeping the home. Their safety and the safety of their children should always be of the utmost importance.

If couples do choose to live together during a separation, clear guidelines should be established at the onset of their decision. Things like physical intimacy, visitation with the children, financial obligations, where each spouse will sleep, and responsibilities around the home should all be discussed.

Living together during a separation does not work for all couples. Another option spouses often turn to during a separation is referred to as “nesting” or “bird-nesting”. This usually occurs if a couple has children. This practice requires one spouse to leave for a specified period of time, often a few days to a week, while the other spouse stays in the home. The spouse that leaves may stay with a friend or family member, or even rent a hotel or apartment while they are away.

After the established time frame is complete, the spouses will rotate so they each have equal time in the home. Some lawyers caution against nesting if a child custody battle is looming, especially if one spouse is seeking full custody. If the spouse seeking full custody has already begun cooperating with a nesting arrangement, a judge may want to continue the routine so that the children’s lives are minimally disrupted. For this reason, nesting should only be practiced if both parties agree to continue the established child custody routine after the divorce is finalized.