If you’ve had an attorney draft a separation agreement (or your soon to be ex has had an agreement drafted by an attorney), you probably have seen a provision that says that the parties are free to live as though single and unmarried.
Sounds nice, right? I mean, yeah – that’s kind of why we include them. It’s a pretty good enticement, in a lot of cases, to get both parties to go ahead and sign.
Legally, though, what does it mean? Well, not a whole lot. And, actually, backing up – no provision in a separation agreement means diddly squat unless you’ve both signed it. I should probably mention that before we go further; just because its there, in black and white, doesn’t mean it means anything. An agreement always has to be signed to be enforceable.
But, anyway, I digress. Most of our agreements contain some kind of provision of this kind, and so it must mean something. Right?
In Virginia, you are married until you are divorced. So, separated, even legally separated with a signed agreement, is not the same thing as fully and finally divorced.
Also, in Virginia, adultery is illegal. Technically, it’s a class IV misdemeanor. It’s rarely prosecuted but, still, the fact remains: it’s against the law. So, if you’re married until you’re divorced, and you’re sleeping with someone else, regardless of whether there’s already a separation agreement signed… you do the math. Technically, if we’re being nitpicky, you’re guilty of a crime. (And so, of course, is he, if it’s him sleeping around.)
The likelihood of you being prosecuted for adultery is somewhere in the neighborhood of absolutely 0, but not quite 0 because it’s still possible.
Adultery is illegal, and, until you’re divorced, you’re still married, so sex with someone other than your husband is illegal.
For that matter, though, I should also mention that it’s not a great idea to have sex with your husband, either, because that could defeat your argument that you’ve been legally separated.
But does it matter, though?
To me – as a divorce attorney – the question is always whether there’ll be adverse consequences. Because adultery is a bar to spousal support (except in cases of manifest injustice), that’s often one of my biggest concerns.
If you have a signed separation agreement in place, your adultery (I’m sorry, I know it’s an icky word) will probably not defeat your spousal support provision, if one is included. If one is not included, obviously there’s no risk that it’ll impact your spousal support. If it is included, it’s already decided, and unless you’re violating some language that would otherwise terminate spousal support, you’re probably good.
Chances are slim that it’ll impact your spousal support award, unless your agreement has some specific language in it. Keep in mind, too, that the statute provides that spousal support will terminate upon (1) death of either party, (2) remarriage of the recipient party, and (3) continued cohabitation of the recipient party in a relationship analogous to marriage for a period of one year or more.
So, barring different language being included in your agreement, you’re probably okay unless and until you live with this guy for a year (365 days) or more. So, maybe don’t go that far.
“I get it; in Virginia, adultery is a crime, and spousal support could be an issue. Whatever. Can I date now?”
If someone straight-up asks me whether it’s okay to date, I usually tell them that it’s not really a great idea until the ink is dry on that final decree of divorce.
Do I think that most people wait that long? That’s a tricky question. I think many people are not really ready to date before their divorces are finalized.
But, for the people who are ready to date and who have a candidate in mind, yes, I do think they probably very often go out before their divorces are finalized. I have no way of knowing whether they actually sleep together, because (1) its none of my business, and (2) they wouldn’t tell me anyway.
It’s probably fine. Is probably a chance you’re willing to take? I think that you’re the only one who can answer that.
I can completely understand that, after several years (or more!) of being unhappily married or abused or whatever happened in your particular case, you’re ready to put yourself out there. I can understand the other side, too – never wanting to date anyone ever again. There’s not really any right or wrong here, there’s just “what risks am I willing to take?” and “can I deal with the consequences, if the worst happens?” Once you answer those questions for yourself, I think you’ll have your answer.
If you want to look more in detail at your personal situation before making a decision, I definitely recommend a consultation. That’s what we’re here for! For more information, or to schedule a consultation to discuss your options, give us a call at 757-425-5200.