If we’ve been separated for years, is it still adultery?

Posted on Jan 6, 2021 by Katie Carter


I talk about adultery a lot. To be fair, it comes up a lot. As far as fault based grounds for divorce go, adultery is probably the single most common.

There’s no one, single, specific path that “every” divorcing woman takes. A divorce is a journey, and it’s one that can take a LOT of different shapes and forms. Though there are key elements that make up every divorce – like a separation – the way the situation evolves over time can look very different from case to case.

It’s easy to think that people who want a divorce separate and then divorce within a short period of time – since, in Virginia, you have to be separated for a year (unless you meet the requirements for a six month divorce, or allege adultery and can, theoretically at least, get an immediate divorce), most people probably imagine that it takes about that amount of time.

But it doesn’t. At least, not always. I can’t tell you how often I meet a prospective client who has been separated from her husband for years already, before she even comes in. Sometimes, too, they come in and even hire me early on in the process, only to hit the brakes and take years before they’re really willing to move their case forward.

Most of the time, it’s for practical reasons. Because they don’t want their health insurance to end. Because they still have access to joint checking and it’s easier this way. Because they have unresolved issues. Because they’re moving, their mom is sick, their daughter is getting married, they’re expecting a baby, or other familial obligations keep them from wanting to rock the boat. Whatever the case may be, divorce isn’t necessarily on a one year timeline.

So, in that time, things can happen. In some cases, you meet someone.

In your mind, your marriage is over. You know it’s over. He knows it’s over. You’re acting like it’s over. You’re planning to end it.
Can you date someone? What does it mean if you do?

Let’s be explicit. (Yes, that’s a bit of double entendre for you there.)

In Virginia, you are married until you are divorced. You are divorced when a final decree of divorce is entered in your case. When you are separated, you are not divorced. When you are separated, you are still married.

In Virginia, adultery is about sex – specifically, oral, anal, or vaginal sex. (See, I told you we’d get explicit.) It is not, however, about dating.

So, technically, you can date. (Though there are other reasons – specifically relating to spousal support – that you might not want to, just for the sake of not wanting to invite scrutiny.) You just can’t go “all the way”.

Kissing, hand holding, getting “engaged”, going out to dinner, saying ‘I love you’, or having an “emotional affair” is not adultery. It may be components of a relationship that lead to adultery, but adultery, specifically, is related to the actual physical act of intercourse. Sorry – too explicit?

Virginia is an equitable distribution state. In a community property state (like California) the law assumes a 50/50 split. The Commonwealth does things a little differently. Equitable distribution essentially assumes a 0/0 split, and we have to argue about what’s “equitable” (which sort of loosely translates to fair) to achieve a division of the parties’ assets and liabilities.

Equity often involves considering both the negative and positive monetary and non monetary contributions that each party made to the marriage. Adultery is a pretty significant negative contribution. Depending on the facts and circumstances, it can be monetary (in the sense that a mistress can be wined and dined, at considerable expense) or non monetary (in the sense that it just led to the breakdown of the marriage).

Of course, when you consider the effects of negative monetary and/or non monetary contributions, you do have to consider whether the affair took place pre or post separation. It makes a difference, right?

Legally, pre separation adultery – in the divorce context! – is regarded more seriously than post separation adultery, at least as it relates to equitable distribution. Adultery at any point is an absolute bar to spousal support, excepting in situations where “manifest injustice” would result.

There’s also the tiny little insignificant detail that, in Virginia, adultery is also a criminal offense!

So, to answer the question explicitly – no, it doesn’t matter whether you’ve lived separately for years – adultery is adultery. It’s a crime, so you’re subject to the same criminal penalties. In the civil context, too, there can be consequences – to your spousal support award, and, also, depending on the unique facts in your own specific case, to equitable distribution.

The safest course of action would be to wait to start (or, at least, consummate) a relationship until after your final divorce decree is entered. It sounds silly to say, but, until that happens, you’re still married – no matter how separately you live.

For more information, or to schedule an appointment with a licensed and experienced Virginia divorce and custody attorney, give our office a call at 757-425-5200.