For some women, dating after a separation or divorce is the furthest thing from their minds. For others, though, after years and years of a less than stellar marriage, it IS on their minds. And, hey, who can blame them? I can completely understand, really, however you feel about the issue.
But when CAN you start dating again? Well, it’s a good thing you’re asking. Its important that you understand the law in Virginia and how it operates, so that you don’t make any serious missteps that could hurt your case.
First of all, let me say: you are married until you are divorced. Adultery, by it’s technical definition, is sexual intercourse (oral, anal, or vaginal – sorry, sorry, I know) with someone who isn’t your spouse. Adultery, in Virginia, is a level IV misdemeanor, which means that it’s a crime that could technically be prosecuted (though that rarely, if ever, happens).
Obviously, dating does not necessarily mean sex. And the real problem is when you fall into adultery territory. Kissing, going out, hand holding – even exchanging rings or saying “I love you” – does not constitute adultery. As one of our now-retired attorneys used to say, “You can go out for dinner, just don’t take him home for dessert.”
Of course, it’s a little more complicated than that. Divorce-wise, there are a couple of things that worry me when it comes to adultery (or even your husband’s suspicion that you are committing adultery).
Adultery is a bar to spousal support
Under Virginia law, if you’ve committed adultery, you’re barred from asking for spousal support. Of course, there’d have to be some pretty convincing evidence of your adultery, but it’s still not ideal.
If yours is a spousal support case, you’re already the lesser earning spouse. That means that your husband can likely outspend you to fight an award of spousal support – especially if his pride is wounded from suspecting that you’ve committed adultery.
So, really, it’s probably wise to be careful about the out-to-dinners and stuff, because the suspicion of adultery is enough (potentially, at least) to make him think there’s something untoward going on, and that means that he may be more inclined to fight. Again, whether he can convince the judge or not is an entirely different consideration, but it’s important for you to think about it. Just because you haven’t had sex doesn’t mean that your conduct won’t raise some eyebrows, arouse some suspicion, or encourage your husband to take on additional (expensive, time consuming, stressful) litigation.
It’s a big problem either way – because you have less money to spend arguing the fact. So, definitely worth considering.
Adultery is grounds for divorce
Adultery is also grounds for divorce, which could put you on a much more difficult, more expensive path, especially if he’s angry, hurt, or embarrassed.
Chances are, your divorce won’t be finalized on adultery, but that doesn’t mean that he can’t make a pretty big stink.
It’s a risk you take.
What about after we’ve got a signed separation agreement?
Most separation agreements include a provision that says that you’re free to live as though single and unmarried after you execute a separation agreement.
In the document, all the issues in the divorce (including spousal support) will be determined, so unless the document has some crazy language that I’ve never seen, there’s really no going back and re-negotiating or litigating that point.
You’re definitely safer once an agreement is signed, and many husbands (and wives) use this as an excuse to get out on the market again. It’s way better after the agreement is negotiated than at any other point, but, still – remember what I said to start? You are married until you are divorced.
Separated, even with a signed separation agreement, is still married. You’re married until that final divorce decree is entered. And, until that point, engaging in sexual intercourse with anyone other than your husband is adultery. It just is. It’s still a crime, and could still be prosecuted.
For more information or to talk about your options with a licensed and experienced Virginia divorce and custody attorney, give our office a call at 757-425-5200.