There’s an easy answer to this question. There’s also a harder answer. Let’s get into it, though, and talk more about dating after separation and divorce.
Dating after separation: the easy answer
The easy answer is that life is messy. That marriages often end long before divorces are finalized. That, for many separated and separating women, things have already been over for a long time. So, though it may look like it’s happening quickly to the outside observer, sometimes dating during separation makes a whole lot of sense after months, years, or even decades of issues during the marriage. You should date – slowly, purposefully – when you feel ready to do so, ideally as you work through your feelings around the breakdown of your marriage with an experienced therapist who can help you make sure that you aren’t making the same mistakes a second time around.
If you are already divorced, the easy answer very clearly applies. If, though, you are separated and not yet divorced, things may be a little more complicated.
Dating after separation: the harder answer
The more complicated answer, though, is that if you start dating before your divorce is finalized, things can be a little more tricky.
Are you divorced or just separated?
It may sound obvious, but I assure you – it is not. In Virginia, you are married until you are divorced. When you are separated, you are not divorced.
What is adultery? Is it adultery?
When you are married and you sleep with someone outside of marriage on purpose (meaning that it is not assault or rape), you commit adultery. Adultery is a criminal offense in Virginia – a level IV misdemeanor – and it is also both (1) grounds for divorce, and (2) an absolute bar to spousal support except in cases of manifest injustice. (What constitutes manifest injustice is, at best, legally somewhat murky and beyond the scope of this article, but you can learn more here.)
What if I’m dating – but we aren’t sleeping together?
I get it. Just because you’re dating doesn’t mean you’re having sex, right? Of course it doesn’t. But creating the illusion that something is going on – basically, that you’re going out to dinner even if you don’t bring him home for dessert, if you know what I mean – might up the level of animosity in your case. If yours is a spousal support case, for example, your soon-to-be ex might use the fact that you’re dating as justification for refusing to pay spousal support. He doesn’t have to actually know whether you and your new love interest are physically doing anything – or even that you may have, but stopped short of actual intercourse – in order for him to refuse to pay support under any circumstances and force you, if you need it, to litigate the issue.
Sometimes, legal questions aren’t just a matter of having the right answer (like that, factually, you and your new boyfriend are not sleeping together), but are also a question of what else is involved. Sure, you may not be sleeping together. But would a reasonable person think so? Would your soon-to-be ex get a leg up on you – knowing, already, that you need spousal support, so your ability to continue to pay for an attorney is presumably also less than his ability to do so – by forcing you to litigate your case, rather than settle out of court?
The costs – in terms of attorney’s fees, time wasted, missed opportunities, and blood pressure points – can still cost, even if you win. And the costs can cost even more if you lose, because now you’ve spent all the money (and blood pressure points) to get to this point and you don’t get spousal support either. It’s a double whammy.
What if I’m dating – and we ARE sleeping together?
Hey, I get that, too. You’re both grown up, consenting adults. Stuff happens, especially if you’ve already been unhappy for a long time!
And if you ARE having sex, well, then, forget about it. Right? You would already have a hard road ahead of you if you weren’t having sex, but if you actually are… well, let’s just say it’s an extra hard uphill battle and one that might not even be worth fighting. It’s always a good idea to talk to a family law attorney about the specifics of your case – and maybe you’ll choose to take on sort of iffy case where you try to differentiate between pre and post separation adultery – but you should also be prepared to hear advice that you don’t particularly like.
What if I already have a signed separation agreement – and spousal support is settled?
Once you have a signed agreement in place that gives you spousal support (or not) or you’ve been to court and a judge has ruled on it, you’re pretty safe. At that point, I would say it’s probably okay – depending on the specific language of your agreement or court order – to start dating. But keep in mind that spousal support can still terminate on specific conditions, too. Your agreement might include some custom provisions, but the statute already provides that spousal support terminates (1) on the death of either party, (2) on the remarriage of the recipient spouse, and/or (3) on the recipient spouse’s continued cohabitation in a relationship analogous to marriage for a period of one year or more.
What if I’m the higher earner?
I love this question! By far, the biggest risk factor when it comes to dating after divorce is the question of spousal support, which is not an issue if you’re the higher wage earner. You can check this concern off of your list. You may still have to pay it, depending on the income differential, to your soon-to-be ex husband, but you won’t receive it so you won’t be sanctioned in that way for dating, whether you do or do not have relations with that person.
Even so, though, adultery is still grounds for divorce – which could increase the likelihood of contentious litigation, depending on how angry your soon-to-be ex-husband is – and it’s also, technically, a crime. It is rarely prosecuted, so you probably have little to fear on that point, but it’s always worth talking to an attorney about the risks and advantages of your situation, especially BEFORE you start a relationship.
The biggest risk in a case where adultery – whether pre or post separation – is in question is whether it will impact an award of spousal support. For many people, the fact that adultery is grounds for divorce won’t necessarily factor into the equation because a whole, long, drawn out, contested, messy divorce is just too expensive to enter into willy nilly. In many cases, we’ll be able to work things out on an uncontested, no fault basis anyway. I’m not saying go ahead, fault based divorce is no concern, but I am saying that it’s probably less likely than that spousal support will be an issue. I’d still avoid it, myself, if I didn’t have a separation agreement or a court order in place, but that’s usually not my primary concern. Still, something you should be aware of.
I’m also not nearly as concerned about the possibility of prosecution – but, then again, I’m not the one considering risking it. Are you comfortable with it? That’s a you question, rather than a me question, but – from my perspective – the potential for prosecution is pretty low.
What would you do, if it were you?
If it were me, I wouldn’t date before divorce unless I had a signed separation agreement that handled my spousal support and that included a provision that we were both able to live as though “single and unmarried”.
Sure, an agreement calling you single and unmarried doesn’t mean that you are; as we’ve already established, you are married until you are divorced. But, from a practical perspective, I think this would likely be good enough for me. I haven’t been put in that exact position myself, but I do think that the feeling of having been unhappy for many years would change things in ways that I can’t necessarily predict now.
And… that’s the best answer I can give you. You should date when you’re ready, when you’re feeling healthy, and, ideally, when you have the support of a therapist to help you navigate some of the trickier issues. You should also, ideally, date after you have a signed separation agreement or a court order that resolves spousal support, or when your divorce is finalized, to avoid creating tricky or potentially expensive issues that might be litigated later.
For more information or to request a copy of our divorce book for Virginia women, give our office a call at 757-425-5200 or visit our website at hoflaw.com.