Divorce from bed and board is getting all of the hype this July, but it’s not the only change that Virginia has implemented this year. In case you hadn’t heard, Virginia is no longer recognizing post separation adultery as a cause of action.
Let’s discuss.
Pre v. Post Separation Adultery
What is adultery?
Adultery is when a married person voluntarily has sex – oral, anal, or vaginal – with someone who is not their spouse. This is why, when I talk about adultery, that’s the word I use. In regular speech, you might say, “He cheated on me,” but I think that cheating is, or at least could be, different from adultery.
When someone cheats, it usually involves sex, but it doesn’t always. It could be an emotional relationship, the fact that he’s “dating,” or even “engaged” to someone else, or sending explicit pictures to them. “Cheating” could cover a multitude of sins, whereas adultery – from a strictly legal standpoint – refers to a sexual relationship that exists on purpose (voluntarily, I said, not a situation where rape or coercion is involved) by a party who is already married.
What’s the difference in pre-separation adultery and post-separation adultery?
It’s all about timing! Before separation, adultery is a misdemeanor in Virginia. It’s also grounds for divorce. If you want to be technical about it, adultery qualifies you for an immediate divorce – something that none of the other fault-based grounds for divorce allows. (Though I think you’ll be disappointed if you think that this means that, somehow, your divorce will be processed more quickly. For a multitude of reasons, this is often not the case, but that’s a bit beyond the scope of this article.)
It’s also an absolute bar to spousal support, except in cases of manifest injustice. Which, I probably don’t need to tell you, is a big one – and which I’m unclear, at least as of the date of this writing, is impacted by the change to the law.
So, all of that to say – adultery BEFORE separation is a big deal. Why? Well, because, before separation, the marriage is a train firmly on the tracks. After adultery, if the parties separate, the court will assume that infidelity is the reason.
After separation, though, it’s a little bit different. The parties have already admitted the marriage isn’t working. For at least one, if not both, parties, things have probably been going on for awhile. Though you’re still married until you’re formally divorced, the adultery isn’t considered to be *quite* as serious as pre-separation adultery, because you’ve already made the decision to end the marriage.
It’s always been a little bit different but, up until July 1, 2026, the court didn’t formally differentiate between pre and post separation adultery. Presumably, both pre and post-separation adultery could be used as a cause of action. Though I think it’s safe to say that post-separation adultery was used less often, it was used – or abused, depending on your perspective. Knowing that post-separation adultery could theoretically be used is a tool that would keep parties – often women – whose marriages had ended YEARS and years ago from being able to pursue other relationships just because of the legal cost to their cases.
And, look, I’m not here for a moral argument about whether you should or should not date or sleep with someone else while you’re technically still married to someone else. It’s none of my business. But it created a dangerous catch-22 where people who wanted to move on – people who were working hard to formally end their marriages – could not move on for fear of repercussions. In a marriage that was already, for all intents and purposes, emotionally, if not legally, over.
Let’s be very, very clear though. The impact of this law change on spousal support is still unclear so, even if post-separation adultery can’t be used as a cause of action for divorce, that doesn’t necessarily mean that your soon-to-be ex won’t be able to use it to bar you from asking for spousal support. Courts have held previously that, even if adultery wasn’t pled as grounds for divorce, that didn’t stop the other party from using it as a bar for spousal support purposes. I’m not sure, without more case law on this topic, whether it will operate this way after July 1.
Can you define ‘separation’ again?
Sure! A good question. In Virginia, you have to be legally separated before you can divorce (unless, again, you have pre-separation adultery) for one year, or six months if (1) you have a signed separation agreement, and (2) you don’t have any minor children born to or adopted by the parties.
You are separated when (1) you form the intent to end your marriage, and (2) you stop cohabitating.
So, “separated,” is not like, “we were on a break,” or “we were working on things,” or even, “we’re seeing a marriage counselor.” You might use the word separated in casual conversation to refer to any of those things, but – as far as legal terms are concerned – to be separated means that at least one of you has formed the intent to end the marriage.
It’s not ended, not yet. Not until you’re fully and finally (divorce from the bond of matrimony, if you’re being pedantic) divorced. But you’ve formed that intention and you’ve moved forward with divorce in the full expectation that your marriage WILL end in the not-too-distant future.
So, after July 1, post-separation adultery won’t be a cause of action.
Post-separation adultery won’t be a cause of action, which means that it’s not so much a looming threat after July 1 in terms of filing using it as grounds for divorce.
That means that post-separation adultery, while technically still criminalized (either way, pre or post separation, it was rarely, if ever, prosecuted), it’s not grounds for divorce in the same way.
Would it be better to wait to date until you’re divorced?
I’m not the morality police. I care mostly about making sure my clients get what they are entitled to receive in their divorces. I didn’t want them going out with or sleeping with someone new before their separation agreements were signed – at the very least – because I was worried that they’d make their cases unintentionally more complicated and expensive. I think that’s probably still the advice I’d give, since I’m not sure what the spousal support implications will be … yet.
To some extent, it doesn’t even matter if you’ve technically committed “adultery,” because – if he suspects you have – he can take you to court and it’ll be up to the judge to decide. Working through the legal process is considered a right, so, if he litigates and tries to prove that the relationship you had amounted to adultery, well, that’s just how the system was designed to operate.
For you, you’ll have to go to court right there with him and defend yourself – whether you didn’t date anyone at all, or whether it was just dinner and he never came home for “dessert” hardly matters. When you have a spousal support case, you ALREADY have a case where there’s an uneven distribution of earning power. So, he can likely outspend you to make sure you don’t get the spousal support you would otherwise be entitled to. And, win or lose, you still have all the legal fees associated with your case. You know? So, for you, it’s kind of lose-lose. He may lose, too, in the sense that it costs him money to ligitate, but it won’t cost him as much, relatively speaking, and it may even benefit him because he may put you in a position so expensive you won’t be able to afford to defend yourself, even if his allegations are entirely untrue.
It’s ideal if you already have a separation agreement in place and everything is resolved, but these cases are often far from ideal. Cases drag out. Terrible things happen. If you’re ready to move on, you should be the judge of that – and you shouldn’t be worried about reprisal from the other party, who should have no means through which to continue to control any element of your life.
The way I see it, post separation adultery no longer being a cause of action is a good thing, no matter what. Whether you’re ready to date or you swear you’ll never date again, more opportunities and less threatening and coercive behavior are ideal. We’ll have to wait and see just how far this law will go towards protecting women, but it’s an incremental step in a positive direction.
For more information, to request a copy of our divorce book for Virginia women, or just to schedule your consult, give our office a call at 757-425-5200.