We had sex. Are we still separated?

Posted on Feb 4, 2022 by Katie Carter

Legal separation is one of those areas of law where we end up with a lot of questions. It really matters, too, because for most of your different grounds of divorce, you’re going to have to prove that you were separated for the statutory period.

The only exception to that is adultery – which technically qualifies you for an immediate divorce – but for every other ground of divorce you could possibly use (and, really, probably even for adultery because no one actually gets an immediate divorce), you’ll have to prove you were separated.

In Virginia, you have to be separated for a year to get a divorce no matter what grounds you use, unless you meet TWO criteria: (1) you have no minor children, and (2) you have a signed agreement. If so, then you can get divorced after just six months of separation.

But, really, for our purposes today, it doesn’t much matter whether we’re going for a divorce after six months of separation or one year of separation. You’ll have to legally separate first, and start counting the days towards your end date second. So, when does the clock start ticking?

You are legally separated when (1) one of you forms the intent to end the marriage, and (2) you stop cohabitating.

The whole ‘forming the intent to end the marriage’ bit is usually pretty self explanatory. It doesn’t take both of you coming to that same conclusion; only one of you has to. But, at that same point in time that you’ve formed this intent to end the marriage, you also stop cohabitating.

Cohabitation is this fancy legal word we use to describe living together as husband and wife. Technically, in Virginia, you can separate under the same roof, as long as you’re not cohabitating. But what does it mean to cohabitate?

Sometimes, it’s fairly easy to tell whether or not a couple is cohabitating. Separated couples should basically act, both inside and outside of the home, like they’re separated. That means telling friends and family members that they’re separated, not attending parties together, not celebrating anniversaries and wearing rings, and that sort of thing. Inside the home, it means much of the same – sleeping in separate rooms, not cooking and cleaning up after each other, and basically living a life that’s much more like a roommate than a husband and wife.

But whether it’s a six month or a one year separation, sometimes things happen. It’s easy, when you’re feeling down or particularly low, to fall into an old, predictable, comforting pattern. Sometimes, even separated couples sleep together.

When I used to talk about this at my Second Saturday divorce seminars, I’d get mixed reactions. Half the room would be like, “No way would I EVER sleep with that jerk again!” and the other half would be nodding and blushing. Hey, it happens. In my experience, actually, almost EVERYTHING happens, so something as mostly benign as sleeping with your soon to be ex is hardly the worst thing I’ve heard all day.

But are you SEPARATED?

I think it depends. We’ve already discussed the two points that make a separation: (1) the intent to end the marriage and (2) no longer cohabitating.

If you can still say honestly that, even at the time you slept together, you still intended to end the marriage, you’re good on that front. If you can say that you’re not cohabitating – like, in every other way within the home (or outside of the home) that you’re acting like separated people, you’re probably also fine.

After all, plenty of non-cohabitating people have sex every single day, right? Sex is part of what makes up a relationship of cohabitating married people, but it’s not necessarily a defining characteristic. Heck, people have sex with literal strangers – so sex, by itself, does not equal cohabitation.

It can be more complicated than just two soon to be exes reaching out to each other in a moment of weakness or loneliness, though. In many cases, the parties turn to sex as they try to do whatever they can to save the marriage.

Don’t misunderstand me. I would never suggest that you leave any stone unturned where your marriage is concerned. If you are thinking it may be possible to save it, do whatever you can to save it first. Divorce – and proving your period of separation – is a secondary concern. Whether you’re able to reconcile or whether you ultimately divorce, you should know that you gave your marriage everything you had and that it just wasn’t meant to be. You shouldn’t be so worried about preserving your grounds of divorce that you don’t give it a shot.

If you’re, for example, attending marriage counseling, I think there’s a pretty strong argument that you’re not separated. After all, how can you have formed the intent to end the marriage if you’re still in counseling trying to work things out? Likewise, if you’re having sex because you’re trying to save the marriage – or to determine whether there’s anything there to save – I think that sort of defeats the prongs of the legal separation test.

Obviously, like many other legal things, it’s going to depend on the specific facts involved in your case. You’re probably going to have to dive into some motivations here – yours and your husband’s – to really determine whether, if you’re still having sex, it defeats your argument that you’re legally separated.

So what if we’re working on our marriage, but it doesn’t work out – can we agree to date back our separation to before this all happened?

Umm, no. Because that’s not true. Every time you reconcile – which is what’s happening when you’re attending marriage counseling or otherwise committing to work on your marriage instead of divorcing – the clock starts over again.

Backdating would be lying. And lying – in legal terms – is perjury. That’s a criminal offense. The issue is that you’ll have to establish your date of separation (under penalty of perjury) in a number of different places – your separation agreement, your final decree, and even in your affidavit for an uncontested divorce.

Don’t lie. It could get your whole case thrown out. It’s just not worth it just to backdate a divorce and get it done faster.

Besides, once you get a separation agreement in place, most include provisions that you’re free to live as though you’re ‘single and unmarried’. You won’t be divorced yet, but once that agreement is in place, you’ll have a lot more freedom anyway. Maybe focus on that instead.

For more information, or to schedule a time to chat with an attorney about your legal separation, give our office a call at 757-425-5200.