Several clients have asked us over the years if they could continue to have sex while the divorce process was underway. Some people might think this is an odd or unusual question but it actually comes up quite a lot. It seems that some people keep having sex even though they are in the middle of a very contested divorce. They fight like crazy in court and mediation and then go home and have sex. I am not a psychologist so I will not try to analyze why they do this but I am a lawyer so let’s take a look at this situation from a legal perspective.
Georgia has a number of requirements that people must meet before the court can grant a divorce. These requirements range from jurisdictional, such as requiring the plaintiff to live in the state for at least 6 months prior to filing, to having a ground for which a divorce is permissible, such as adultery or irreconcilable differences. One such requirement is that the parties be “legally separated”. “legally separated” under Georgia law means that the parties are not living together as husband and wife. Obviously, in the current economy it is not always feasible for the parties to immediately maintain separate homes, so they end up living under the same roof while the divorce process is underway. This arraignment is permissible as you can live under the same roof but not be “living as husband and wife”.
However, if the parties have sexual intercourse, then the requirement of being legally separated is no longer met and the case will be dismissed. Once the case has been dismissed, it must be filed over again and the plaintiff must swear that the parties are now living in a state of separation.