Can I date now that I’m separated?

Posted on Feb 17, 2017 by Katie Carter

Some women swear that, after divorce, they’ll never date again. Others seem to find love again quickly and easily without really trying. Whatever your feelings are regarding love and relationships after divorce (though I can tell you that, statistically, you will find love again), you should also know that, before divorce, there are some issues. Once you’re separated, you’ll probably start to feel like the ties that bound you to your husband are starting to loosen—and start thinking of other alternatives. As far as dating and divorce are concerned, it’s only natural to wonder. What ARE your options? Can you date while you’re getting a divorce—or should you wait until after?
I mean, obviously, you probably realize on some level that, for them, they should wait until after—if for no reason than, until the time their divorce decree is finalized, they are actually married to someone else. For some people, the moral aspect clinches the decision; for others, the moral ground is more gray than black and white. I’m not here to pass judgment either way.
The truth is that you are married until you’re divorced. It seems simple, but, for some people, it isn’t—they just don’t think about it that way. But, in the eyes of the law, the answer is clear—you are married until you’re divorced, and, until you’re divorced, if you sleep with someone else, you’ve committed adultery.

What does adultery mean?

In Virginia, adultery is a crime. It’s a misdemeanor, and it’s rarely prosecuted, but it’s still a crime.
Adultery happens when a married person knowingly has sex (defined as oral, anal, or vaginal) with a person who is not his or her spouse. Even if you’re separated, you’re still married, so having an affair while you’re separated still constitutes adultery.

Does it matter whether adultery happened before or after you separated?

Yes and no.
As far as a judge is concerned, there’s probably going to be a difference in adultery that happens before separation (because that would be a legitimate reason for the breakdown of the marriage) and adultery that happens after separation (which doesn’t have anything to do with the breakdown of the marriage). As far as culpability, you’re probably less on the hook if you commit adultery before separation.
You should know, though, that adultery is grounds for divorce in Virginia and, if your husband wanted to, he could use those grounds to get into court. Then, technically, under the law, a judge could award more or less of the marital assets to one party or the other as a result of their “negative non monetary contributions” to the marriage.

Adultery is certainly a negative non monetary contribution and, as such, could result in you receiving less of the marital assets if you’ve slept with someone else while married. I think it’s probably pretty likely that the judge would come down harder on someone who committed adultery before separation than one who committed adultery after separation, at least as far as division of the assets is considered.
Whether it’s pre or post separation adultery, though, it’s still a crime, and, technically, you could still be prosecuted. It’s unlikely, but it’s still possible.

The biggest risk in divorce if you commit adultery

If you commit adultery, the biggest risk is that you’ll be barred from asking for spousal support later. Technically, adultery should act as a bar to spousal support whether it’s pre or post-separation adultery—unless you can prove “manifest injustice” would occur if you were denied spousal support. (Spoiler alert: “Manifest injustice” is incredibly difficult to prove, and it will take a long time and cost a lot of money to do it.)
That’s a big risk, especially if you were hoping to receive spousal support. Are you willing to risk being barred from spousal support? Of course, if you commit adultery and he doesn’t know about it, you may be able to get away with an award of spousal support—but it’s a pretty big risk.

If you want to be on the safe side…

It’s definitely safest NOT to date until you’re divorced. Will it have a huge impact on your case? That’s hard to say, but it’s certainly a risk. It’s possible that you could be prosecuted (though it isn’t very likely), that you could receive less of the marital assets if your husband decides to litigate your divorce and file on grounds of adultery, or that you could be barred from receiving spousal support.
Additionally, if custody is at issue, you might raise other issues about your fitness to be a parent. I’m not saying that I think a judge would take your child away because you started a relationship before your divorce was finalized, but it could make for additional litigation, which would take time and cost money. (You COULD risk doing serious harm to your custody case, of course, if your new boyfriend is a violent felon or a registered sex offender, but, in most cases, the boyfriend himself isn’t totally damning.)

If you want to be on the pretty safe side…

If you’re really tempted to date the guy even though your divorce isn’t finalized, I’d wait until after you have a signed separation agreement. Most separation agreements include a provision that you are free to live as though “single and unmarried.” That doesn’t take away the fact that adultery is still a crime (and you’d still be guilty of it if you had sex with someone other than your husband before the final divorce decree is entered), but it does protect you to have a signed agreement already in place.
In that case, your husband can’t use adultery as his fault based grounds for divorce, so your case will never come in front of a judge—except to finalize it on an uncontested basis. The judge won’t be able to decide that you’ve committed adultery and, as a result, deserve a smaller share of the marital assets. You also won’t be barred from spousal support, because you’ll already have an agreement in places that either specifies that you will receive it, or that you won’t, and, once it’s in place, the provisions of the agreement (at least, as far as equitable distribution and spousal support) can’t be changed.

If you’re going to date him anyway…

If you’re going to date someone new anyway, it doesn’t matter what the consequences are. You’re a big girl, and you’re certainly free to make that decision. I don’t think it’s wise, considering that you’ve got a pending divorce case, but that doesn’t mean that you aren’t capable of weighing the consequences and making a different decision than what I would recommend.
If you do decide to start dating, I would say that you should be incredibly discrete. Manage what goes on to your social media pages. Be conscious of how you’re seen in public. In short, be as responsible and as quiet about it as possible. If you sleep with your boyfriend, no one needs to know.
It’s smart of you to ask these questions now. Whatever your decision, at least you’ll be making it in full knowledge of the risks and benefits to your case. For more information or to schedule an appointment with one of our family law attorneys, give our office a call at (757) 425-5200.