First, you are considered separated the date you start living separate and apart from one another. A separation agreement does not have to be signed for you to be separate. If it is phrased in the agreement you were served with that the two of you will live as if you were never married but you didn’t sign the papers then you didn’t agree to the terms. You are still married and will be still married until the absolute divorce is granted after one year and one day or living separate. You are free to explore romantic relationships with the absence of sex since you are separated. Sexual relationship is adultery, a misdemeanor and rarely prosecuted. There is also the option of criminal conversation which is the act of sex with someone other than your spouse without your spouse’s consent. Proof of sex has to be shown but this can be charged on the spouse whether or not the couple is still together or separated.
If I were you, I would speak with an attorney and file for Equitable Distribution claim. Whether she likes it or not, she is not entitled to ALL the marital assets. They must be divided equally with you. Have the separation agreement she served you with looked over and altered with what you WILL agree to and have her served.
Good luck!

Dear ssteach714:

Greetings. Yes, you are legally separated on the date you stop living together and one of you intends it to be permanent. Yes, you are relatively free to explore romantic relationships but not sexual ones, as that is against the law. Thank you.

Janet L. Fritts
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.256.1665 direct fax

301 McCullough Drive Suite 510
Charlotte, North Carolina 28262
704.644.2831 main voice
704.307.4595 main fax

1829 East Franklin Street, Bldg 600
Chapel Hill, NC 27514
919.321.0780 main phone
919.787.6668 main fax


The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.

My wife and I have been separated since October. She claimed that there was no one else “in the picture”. I had my doubts. She served me with separation papers in November and have been living apart since. There hasn’t been any signing of documents or separation of property. She literally took all marital property leaving me with the property I brought into the marriage. Now I found out that she is dating. My clarification question is…are we considered legally separated only because we are in separate residences and because a document has been served regardless of a signature? Also, are we free to explore romantic relationships (sexual or otherwise) outside of our marital contract or is this considered adultery?