Published by Ask General Counsel on InsideNova, 3/2/2023
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In this edition of Ask General Counsel, Joanna Foard, who leads General Counsel, P.C.’s divorce / family law practice, discusses whether, in Virginia, someone can date while separated.
Virginia does not legally acknowledge a couple’s separation as the end of a marriage. Even while separated, a couple is technically still married until a divorce is finalized. Because spouses are technically still married while separated, dating while separated may result in negative consequences for the dating spouse. Adultery is a misdemeanor offense in Virginia. But, while criminal prosecution is unlikely, it may affect divorce proceedings.
In Virginia, adultery constitutes grounds for divorce if there is evidence of one spouse having intimate relations with a party outside the marriage. While Virginia does allow for “no-fault” divorce after a period of separation, if one spouse has committed adultery, that gives the other spouse the opportunity to file for fault-based divorce on the grounds of that adultery.
Spousal Support – Particularly, if you are seeking a divorce and are hoping for spousal support, or alimony, you should be cautious about dating and having an intimate relationship with someone who is not your spouse while separated.
Virginia courts consider many factors when determining whether a spouse is entitled to spousal support and the duration of any spousal support. One of those considered factors is whether there are any instances of adultery during the marriage. Spouses can be barred from receiving spousal support in divorce resulting from adultery.
Property Division – Since adultery is a ground for divorce in Virginia, dating while separated may affect the division of assets during divorce proceedings. In Virginia, in the event of a divorce, courts follow the equitable distribution method of dividing property. Under equitable distribution, courts will divide property “equitably,” or fairly, between spouses, but not necessarily evenly.
When determining how to divide marital assets, courts consider many factors, including marital fault. If adultery is proved, a court may award less marital property to the spouse who was proved to have committed adultery.
Child Custody and Visitation – If a couple has minor children, there’s the additional consideration of child custody matters. When making custody or visitation decisions, Virginia courts will determine what is in the best interests of the child. Part of that consideration may include new relationships and dating partners, if those partners are introduced to the minor children.
If a parent is seeking primary physical custody of children, a dating relationship may be considered by the court and negatively affect chances of receiving primary custody.
Property Settlement Agreements – If you do intend to date while separated, consider entering into a property settlement agreement, or marriage settlement agreement. Upon divorce, spouses can enter into a property settlement agreement setting out the terms of their separation, including the rights, interests, and obligations of the spouses after the divorce.
Entering into a property settlement agreement can take the guesswork out of how the court may factor in potential adultery in divorce considerations, because support and property division matters will be established in the agreement and agreed to by the spouses.
Alternatively, if spouses entered into a prenuptial or postnuptial agreement that set out the terms for property division in the case of divorce, the couple’s property will be distributed according to the agreement rather than a court determining distribution.
General Counsel Advice – If you’re considering dating before your divorce is finalized, be aware of the potential consequences of that decision. If both spouses will agree to a property settlement agreement that won’t penalize dating during the separation, that will allow for divorce matters to be decided without factoring in whether or not adultery was involved.
Alternatively, if you believe your divorce may be contentious, dating before the divorce is final may give your spouse information to use against you during divorce proceedings to get a more favorable result. If you do choose to date while separated, waiting until after the divorce to make the relationship intimate will prevent you from committing adultery and allowing that to be used against you in divorce proceedings.
While the above information is written based on Virginia law, Maryland courts similarly view dating while separated as adultery, so the discussion applies to Maryland spouses as well. Unlike Virginia and Maryland, which allow adultery as a ground for divorce, the District of Columbia only recognizes no-fault divorces. Adultery is not a ground for divorce in Washington, but courts may still consider adultery when deciding on spousal support and property division.
Led by Joanna Foard, General Counsel, P.C.’s family / divorce practice can help you. Divorce and related matters can be complex and because of their importance, it is beneficial to consult with an attorney experienced in family law matters. Our family law attorneys are well versed in divorce matters, including the equitable distribution process and can help you navigate the process and protect your rights. Email us at intake@gcpc.com or call us at 703-556-0411 and see how we can help you. You can also use this Contact Us Form.