This Note will identify how the majority in Higgins analyzed prior case law to derive a legal definition for the term "separate and apart." This Note will also serve as a caveat to the legal community. The Higgins decision resulted from the couple's failure to abide by the terms of a condition precedent that had been inserted into a property settlement provision of the separation agreement. The decision should be confined to its narrow facts. The case does however deserve close scrutiny. Application by subsequent courts of the Higgins ruling as precedent for the proposition that isolated acts of sexual intercourse destroy an entire separation agreement would seriously undermine legislative enactments and wreak havoc with regard to executed provisions of separation agreements.
Gerald H. Groon Jr., Domestic Relations - Post-Separation Sexual Intercourse Precludes Enforcement of Agreement Requiring Parties to Live Separate and Apart - Higgins v. Higgins, 11 Campbell L. Rev. 73 (1988).