questions & answers

Question: I had moved out of my house a year ago from my husband. I did not have the money to file for divorce until last week. As of the first of the year 2013 I have had a boyfriend and now my soon to be x is threatening me with adultery. Is this adultery if we have been separated for over a year?

Answer:

It may depend on whether the marriage was a covenant (common-law) or traditional. Assuming it is a traditional marriage, A.R.S. section 13-1408 (http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/13/01408.htm&Title=13&DocType=ARS) provides that adultery is guilty of a class 3 misdemeanor for having sexual intercourse with someone other than his or her spouse.

However, under A.R.S. section 13-1401, the definition of "spouse" is "a person who is legally married and cohabiting." Therefore, if a couple is legally married but physically separated, the adultery offense may not apply since there is no cohabitation occurring.