I need to know the possible financial or other possible punitive action
ramifications of dating or living with a person after legal
separation papers have been filed but prior to formal divorce in the
State of New York where divorce will be filed. Looking specifically
for financial and/or other punitive action or consequences that can be
issued against both myself and/or to the separated (but still married)
man according to New York State Law. Also any information about the
possibility of adding a provision into the legal separation papers
prior to file, in order to protect for dating during this periond is
helpful, as is any other information or links pertaining to the limits
and actions of adultery with regard to NY state divorce law. However,
the first issue of possible ramifications to both myself and my
(married partner) of dating and living together during legal
separation period is the crux of this question.  Thanks so much!

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Request for Question Clarification by richard-ga on 08 Nov 2003 09:20 PST

Do you have a copy of the separation agreement?
What does it say about how the parties must behave during the period of separation?

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Clarification of Question by rondala-ga on 09 Nov 2003 07:04 PST

The separation agreement is NOT YET finalized (next 2 weeks). Does it
protect if "seeing others" (or even seeing or "part time living" with
a specific person) is written into this agreement? (The wife is trying
to have adultry as the reason for divorce put down on the separation
agreement papers supposedly to expedite the time to 3 months instead
of a year. This concerns me as to how it can possibly be used later
after the separation papers are formalized but before the divorce and
if we're living together...) Sufficient clarification?
I thank you much!

Hello and thank you for your question.

If it has been agreed that the divorce will be accomplished by filing
a written separation agreement there's only one answer: You need to
make sure that the separation agreement covers all the issues,
financial and personal. But as discussed below, while the agreement
can allow 'dating' during the year apart it can't allow 'adultery.' 
And that's a fine line!  You can 'date' during the year; you surely
can't live together.  When does dating become adultery?  There's no
clear answer, so you'll certainly need to be discreet.

The written separation agreement is the best route for you, because as
long as you abide by its terms, the financial deal will have been
worked out in advance.

So the balancing act you need to do now is to be frank enough to get a
strong dating clause into the settlement agreement, but if this makes
her angry enough the wife may switch to the adultery route (with or
without a Court judgment of separation) that might leave the financial
settlement deal open until a later date.  Nor can the settlement
authorize him to be adulterous during the year of separation.

Here's the background:
"There are different grounds for a divorce, separation, and annulment.
In the case of an absolute divorce, there are six (6) grounds for a
court to grant an absolute divorce:
  adultery; 
  abandonment for one or more years; 
  imprisonment for three or more years; 
  cruel and inhuman treatment; 
  one or more years separation a under written separation of agreement; 
  one or more years separation under a court judgment of separation. 
Any one of these grounds, if proved, will result in the complete
dissolution of the marriage."
.....
There are only two valid ways to dissolve a marriage in New York
through separation of agreements.
  The law requires that you live apart for one or more years under
either a written contract of separation or court judgment of
separation.  The separation agreement should clearly outline custody,
spousal support, distribution of property.  The agreement is filed
with the clerk of the county where either spouse lives.  At the end of
one year from the date of the agreement, either spouse may sue the
other for a "no-fault" divorce.
  Another form of separation is through a judgment of separation. 
Abandonment may be for less than one year and "non-support" is a
ground for decree of a judgment of separation.
  One year after filing of the court's judgment of separation, either
party may sue for a "no-fault" divorce after one year of living
apart."
Grounds for Divorce in New York
http://www.nydivorceonline.com/nypages/Divorce/grounds.asp

So how frank can you be in the settlement agreement?
    "In a separation agreement, a provision providing for the parties' 
    separation must be in the agreement, (i.e., 'The Parties will live 
    separate and apart as if such parties were single and unmarried.') 
    This is not, however, authorization to engage in adultery."
The Marital Agreement Primer (Parts 1, 2 and 3)
http://www.brandeslaw.com/Agreements/beyond_the_bar_feb_2001_article.htm
http://www.brandeslaw.com/Agreements/beyond_the_bar_mar_2001_article.htm
http://www.brandeslaw.com/Agreements/beyond_the_bar_apr_2001_article.htm

Here's how another writer puts it:
A Separation Agreement CANNOT legitimize adultery.  Sexual relations
with a person who is not one's spouse is adultery, and no 'dating
clause' will serve to make legal something that is illegal.  Most
separation agreements do, however, contain a clause that allows each
spouse to be left alone as if single and unmarried and that forbids
each spoue from harassing, molesting or interfering with th other. 
Again, please advise that this is not a license for adultery."
Chapter RR
http://www.jagcnet.army.mil/JAGCNETInternet/Homepages/AC/TJAGSAWeb.nsf/0/5748b7bec47daccb85256c4e00690edd/$FILE/Chapter%20R.pdf

See also
ADULTERY AS A GROUND FOR DIVORCE
http://www.brandeslaw.com/grounds_for_divorce/adultery.htm

Search terms used:
"new york" divorce adultery faq
"new york" "settlement agreement" cohabitation

I hope you find this information useful at this difficult time.  Of
course this answer cannot constitute legal advice--be sure to cover
these issues with a qualified attorney!

Sincerely
Google Answers Researcher
Richard-ga

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Request for Answer Clarification by rondala-ga on 10 Nov 2003 08:16 PST

Richard (answer) & expert-law (comment) thank you both! One
clarification question (which you may or may not be able to address):

Within the mediation process for filing separation papers this week,
the wife is trying to have "adultry" on the part of her (yes military
vet.) husband put down as the reason for their divorce (btw: There was
NO adultery prior to his IN-formal separation, just a lunch, a kiss
and emails as old h.s.friends 25 years later, that made her kick him
out of the house and start toward divorce - true! Now of course it's
gone further.)

...She is arguing for him to claim adultery on their papers,
supposedly because this means they can finalize the divorce in 3
months instead of waiting the entire year.  I'm concerned of the
possible ramifications.  Does this "deepen" the potential dangers of
our continuing to see each other during the separation period (in
terms of a potentially inflamed wife deciding to disregard their joint
separtion agreement for financial distribution, and instead take the
adultery and use it to the full extent of the law for changing the
agreement?  We live on opposite coasts, so to see each other we would
be meeting in the same house for extended periods of time over the
next 6 months.

Thanks if you're able to take this one step deeper -- and thank you so
much for your assistance and thoroughness as is and if you can offer
no more.  I realize it's dicy and certainly appreciate that your
assistance does not consititute legal advice, just better information.
 It's a romantic tale but with potentially frightening consequences
where hurt and anger are invoked and used against one another... the
world of love...  Thank you!

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Clarification of Answer by richard-ga on 10 Nov 2003 18:36 PST

Hello again.

There's no such thing as a 3-month divorce under a separation
agreement between the parties.  Here's the law:
  "S 170. Action for divorce. An action for divorce may be maintained
by a husband or wife to procure a judgment divorcing the parties and
dissolving the marriage on any of the following grounds
....
 (6) The husband and wife have lived separate and apart pursuant to a
written agreement of separation, subscribed by the parties thereto and
acknowledged or proved in the form required to entitle a deed to be
recorded, for a period of one or more years after the execution of
such
agreement and satisfactory proof has been submitted by the plaintiff
that he or she has substantially performed all the terms and
conditions
of such agreement. Such agreement shall be filed in the office of the
clerk of the county wherein either party resides. In lieu of filing
such
agreement, either party to such agreement may file a memorandum of
such agreement, which memorandum shall be similarly subscribed and
acknowledged or proved as was the agreement of separation and shall
contain the following information: (a) the names and addresses of each
of the parties, (b) the date of marriage of the parties, (c) the date
of the agreement of separation and (d) the date of this subscription
and
acknowledgment or proof of such agreement of separation."
NY DRL
http://assembly.state.ny.us/leg/?cl=29&a=20

So the wife is not being truthful and there's a different reason she
wants to get the admission of adultery into the agreement.  My guess
is either (i) she's just keeping the pressure on to keep him on the
defensive in the negotiation, or (ii) she thinks that having the
admission in the agreement will help her to upset the settlement
agreement if she can catch him being adulterous during the one-year
separation, or (iii) she thinks that having the admission in the
agreement will help her to make a better claim for money if he
breaches the settlement agreement for any other reason.

All of these are good reasons for him to keep the admission out of the agreement.

I don't have much to add on the question of how you can behave during
the year without putting the separation deal at risk.  The stronger
statement you can have about each party leaving the other alone to
live as a single person, the harder it will be for her to justify
snooping.  The courts don't want to overturn a settlement agreement,
but if she has the grounds to push the adultery claim it is something
to worry about.  Since you can't ask that the agreement allow you meet
in the same house for extended periods, there will be some degree of
risk if you do.  Of course if the financial deal that you give her in
the settlement agreement is favorable to her, she'll have less reason
to want to take the trouble to accuse you of breach--unless sheer
vindictiveness might make her change her mind about the deal she
makes.

Again, good luck with your situation.

Sincerely,
Richard-ga

Richard- so much thanks to you! Your referral to links and citations
very helpful along with very clear substantiated
interpretation/commentary. Clear, direct and well answered on a less
than straight forward question. Thanks!

Confessing that I am not licensed in New York and don't pretend to
have a full understanding of that state's divorce law, off the top of
my head there are three reasons I can think of which would inspire me
to try to get a confession of adultery into a separation agreement
under New York law:

1. The adultery is established as a fact. As adultery is still on the
books as a criminal offense, a party to a divorce may be able to "take
the Fifth" to avoid admitting adultery, and absent photographs or a
confession it can be difficult to prove.

2. The fact that the adultery is recited as a basis for the parties'
separation makes it more difficult for the adulterous spouse to raise
the defense of forgiveness, in the event that the adulterous spouse
wishes to oppose the divorce.

3. The confession of fault by the adulterous spouse may constitute a
basis for a disproportionate division of the marital estate. (This can
probably be avoided by having a detailed property division as part of
the settlement agreement, with the stipulation that it will be adopted
as part of the judgment of divorce.)

Adultery after separation cannot ordinarily stand as a basis for
establishing "fault" in the breakdown of a marital relationship, as
the separation (and the acts which gave rise to the separation)
occurred prior to that conduct. However, it may still reflect against
the adulterous spouse, if there might otherwise have been a
reconciliation. Also, if there is a child custody issue, sometimes
dating activity can factor into a court's decision.

(I was involved in a case once where the wife's attorney was arguing
in court that the husband was somehow peculiar, because he had not
become involved with another woman during the parties' lengthy
separation. Of course, had the husband confessed to dating, the wife's
attorney likely would have argued that he was impeding possible
reconciliation and was creating an unsuitable home environment for his
son....)

It is my understanding that New York has abolished the tort of
"alienation of affections", and thus that you are unlikely to face a
lawsuit for becoming involved with a married person.

The Army JAG publication which describes that "A Separation Agreement
CANNOT legitimize adultery" should be of significant note to members
of the military, where adultery is still routinely prosecuted as a
criminal offense. In the civilian world, although adultery is one of
the most common allegations in the context of "fault" divorce,
prosecutions for adultery are exceptionally rare. While true in both
contexts, the Army JAG's emphasis reflects the special realities for
members of the military who are caught in adulterous relationships.