“Free to live as though single and unmarried”

There are a lot of things about divorce that are confusing and, well, to put it simply, misleading. When it comes to separation agreements, there are a lot of things that make most people stop and say, “Wait, what?”
I’m sure a fair bit of that comes from attorneys using so much legalese. Frankly, there’s a lot of crap (yes, it’s probably fair to call it crap) that goes into a separation agreement that is wordy and confusing and not at all easy to understand. It’s not our fault, really. We were trained to right that way and, whenever we try to move away from legalese towards more generally accepted plain English, we think again. Our sentences are long and confusing because we are trying to draft them to be as specific as possible—thereby, in our minds, protecting our clients from possible sticky situations later on down the road. If we write a sentence, we think, with every possible eventuality considered and included, we do the best possible job of protecting our clients.
Of course, we also do a very good job (sometimes) of confusing our clients. We do our best not to, of course. We encourage our clients to ask questions, and we try to preemptively explain things. And, hey, it’s not like it’s just us. Whenever I go to the doctor or the veterinarian, I’m bombarded with tons of medical terms I don’t understand—and, frankly, that, when I get out into my car, I can’t remember anyway. It happens. And I don’t blame the doctor or the vet for my confusion. Mostly, I shrug it off entirely. Which is probably how most people deal with the information they receive at their attorney’s office, too.
One thing, though, that I hear a lot (which means that it must be confusing!) is that women (and men, too, I assume, though I wouldn’t know first hand because I don’t represent any) want to negotiate a separation agreement as quickly as possible, because they want to be able to live as though they are single and unmarried.
Now, it’s true that “single and unmarried” is a provision that we often include in separation agreements. And the whole point of a separation agreement is to divide the assets and liabilities in a marriage, and set forth how the relationship will be handled between the time the agreement is signed and when the final divorce decree is entered. But, still, that provision is misleading.
I’ve spent a lot of time telling women to be careful about what they sign because once they sign, they can’t un sign.  I’ve also told them that whatever they agree to becomes law, because now they’ve entered into a contract. I’ve said that judges will uphold the contract and it’s provisions as a bargained for benefit. And all of that is true.
Still, though, the provision that allows separated people who have signed separation agreements to live as though they are single and unmarried is not 100% legal. It’s one of those provisions that we include because our clients like to see it, and because it’s good to set up both people with similar mindsets. We can’t, however, change the fact that adultery is a crime in Virginia (technically, it’s a class IV misdemeanor).
Adultery is, strictly speaking, willingly having sex (whether oral, anal, or vaginal) with someone who is not your spouse. In Virginia (and everywhere else, as far as I’m aware), you’re married until you’re divorced—so, even though you’re separated, you may be living separately, and you’ve negotiated a signed separation agreement—you’re not divorced.
Technically, even with that provision in your agreement, you’re not totally free to live as though you were single and unmarried. You’re freer, it’s true, but you’re not completely free. Putting that provision in your agreement may make you feel good (and, really, that’s the point), but that doesn’t take away from the fact that we can’t change that adultery is, technically, a crime in Virginia.
Of course, it’s not prosecuted, so your chances of having anything bad happen to you because you’ve committed adultery are slim and none (with an emphasis on none). You don’t risk losing spousal support, either, because an agreement has already been negotiated, which either gives you spousal support or it doesn’t. It’s too late to change the terms of that agreement now.
So, even though agreements often contain this provision, it doesn’t have a whole lot of force and effect. What does that mean you should do? Probably nothing at all, except be aware of what the law actually is. Whether you choose to start a new relationship now, wait until your divorce or finalized, or never enter into a relationship again, the choice is entirely yours—but you should do so knowing full well what the law is.
Include this provision because, really, why not? If it makes you feel better (and makes either of you more inclined to sign the agreement), go right ahead.
For more information, or to set up an appointment with one of our licensed and experienced Virginia divorce and custody attorneys, give our office a call at (757) 425-5200.