First, unlike some states, there is no such thing as a “legal separation” in Virginia. Under Virginia law, you are either married or divorced, so even though you may be separated from your spouse physically, you are still married in the eyes of the law. With that being said, no one can prevent you from dating during your separation. It is not a crime to do so, and the court is not going to order you not to date. However, dating during your separation poses some potential risks.
For one, you may be giving your spouse the ability to file for divorce on fault-based grounds. If you are having sex with your dating partner, you are committing adultery. As strange as it may sound, adultery is a crime in Virginia and you can be charged with a misdemeanor for engaging in it (although actual criminal prosecution is extremely rare). Adultery is one of the fault-based grounds for divorce, and it can act as a bar to spousal support if you are seeking it and your spouse can prove you committed adultery (unless you can show that a denial of support would constitute a “manifest injustice”).
Additionally, the court will consider such marital fault when deciding how marital property should be distributed between the parties, and the court has the power to award you less of the marital property if adultery is proved.
Even if you aren’t having sex, the relationship may cause further tension and distrust between you and your spouse, making it more difficult for you both to reach a settlement in your divorce.
Finally, in cases where children are involved, dating can have a potential impact on the court’s custody and visitation determination. Child custody and visitation is determined based on what is in the best interests of the child. Virginia Code § 20-124.3 provides the court with a number of factors it must consider when making this determination. Your new relationship, especially if the children are introduced to the new dating partner, could impact the court’s view of your fitness as a parent and your ability to assess the needs of the children. While post-separation dating won’t be the determining factor in the court’s decision, it will likely be considered and could negatively impact your chances at primary physical custody if you are seeking such an arrangement.
So, is it advisable to start dating while separated? Again, you are not prohibited from doing so. And it is understandable that you may be eager to get back out there into the dating world after years of unhappiness. However, if you decide to go for it, at the very least, you should hold off until you have entered into a separation agreement or Marital Settlement Agreement (“MSA”) with your spouse. This will provide you with some protection going forward should you decide to date before the divorce is finalized, as most MSAs contain a provision stating that the parties will not seek a divorce other than on no-fault grounds. [Note that, even if you’ve entered into an MSA with your spouse, having sex with someone other than your spouse is still adultery, so you may still want to wait until the divorce is finalized.]
If you are separated from your spouse, be sure to consult with an experienced family lawyer in your jurisdiction before you begin dating. From offices in Fairfax, Arlington, Ashburn, Manassas and Fredericksburg, the experienced family law attorneys at Livesay & Myers, P.C. represent clients across Northern Virginia. Contact us to schedule a consultation today.
See also: Guide to Separation in Virginia