Can I have a boyfriend after separation?

I get asked all the time what the general rule is with respect to getting a boyfriend after separation.  To be fair, a fair number of my clients tell me that they’ll never remarry and that men are scum, but there are plenty of others who are looking for love before the ink is dry on their final divorce decree.I get asked all the time what the general rule is with respect to getting a boyfriend after separation.

To be fair, a fair number of my clients tell me that they’ll never remarry and that men are scum, but there are plenty of others who are looking for love before the ink is dry on their final divorce decree.

Either way—whether you scorn love or are looking for it—I completely understand the way you’re feeling.  Usually, by the time a couple makes the decision to divorce, things have been difficult for a pretty long time.  For many, that means that the feelings of love are long gone, leaving them open, fairly quickly, to the possibility of a new relationship.  Some people, through no fault of their own, have already met the person that they’re hoping to begin dating.

Many, many women have a boyfriend after separation and before divorce.

Is that allowed, though?

Can I get a boyfriend after separation?

That’s a kind of complicated question.  There’s nothing illegal about having a boyfriend after separation—or before separation, for that matter.  The thing that IS illegal, though, is committing adultery.  In fact, in Virginia, it’s a crime.  It’s a class IV misdemeanor.  Before you get all bent out of shape, though, let me say this: adultery is (almost) never prosecuted. What’s adultery?  Well, that’s a good question.  In Virginia, adultery is when a married person willingly has sex with someone who isn’t his or her spouse.  So, it may be legal to have a boyfriend after separation, but it’s not really legal to have a boyfriend with whom you also have sex after separation and before divorce.  If you want to have a boyfriend after separation with whom you hold hands and go out to dinner, be my guest—that’s not adultery (though it may raise some eyebrows and encourage suspicion—more on that later).

Because, after all, to boil it all down to something very simple: you are married until you are divorced.  When you are separated, you are not divorced.  It’s still adultery, it’s still a class IV misdemeanor, and there are still civil and criminal penalties that could apply to you.  When I first started here, one of the now retired attorneys told me that, as a general rule of thumb, it’s okay to take him out for dinner—just don’t bring him home for dessert.

Even if I did “take him home for dessert” what are the risks?

Weren’t you literally just saying that adultery doesn’t matter?It’s true—I did write an article a few weeks ago about how adultery doesn’t matter.   And, in many ways, that’s true.  Though adultery is grounds for divorce in Virginia, most judges differentiate between pre separation adultery and post separation adultery.  As far as they are concerned, pre separation adultery is the reason for the breakdown of the marriage—and therefore more punishable—than post separation adultery, which just so happens to occur after the marriage is already over.It’s incredibly difficult to get a divorce using adultery as your grounds, whether it’s pre or post separation, though, and, in fact, very few people are successful.

Most people, even if they initially file for divorce using adultery as their grounds, eventually convert their divorces over to uncontested no fault divorces.  (There are a lot of reasons for that, but mostly that it’s much more expedient and far less expensive to pursue an uncontested no fault divorce.)  Even if you WERE to get a divorce granted on adultery (which is far less likely if we’re talking post separation adultery), it’s also unlikely that would result in your husband receiving more of the marital assets than you, and it certainly wouldn’t affect custody.

In other words, though many people regard adultery as a kind of golden ticket when it comes to divorce, it definitely isn’t.  You’re unlikely to get a divorce on adultery grounds (even with pretty solid evidence, in our experience), and, even if you did, you’re even less likely to get more of the marital assets because of the adultery (or less if you were the one who committed adultery).  Given the unlikelihood of success, its rarely worth it to spend the extra money and time (not to mention blood pressure points) pursuing a divorce with adultery as your grounds.

Are there ways that committing adultery might hurt you?

Yes.  One way, specifically.  If you’ve been found to have committed adultery, that’s a bar to receiving spousal support (if you would have been entitled to receive spousal support anyway—and that may be a big “if”).  Of course, if you’ve already negotiated a signed separation agreement that either entitles you to receive support or waives it, the point is moot—the court will go with whatever your agreement says.  If you haven’t negotiated an agreement yet, though, you may find your husband less willing to be flexible where spousal support is concerned, whether or not you’ve “taken him home for dessert” yet.  (Trust me, he’ll suspect the worst.  And if he suspects it, he’s not going to be inclined to settle.  He may take the case to court on the issues of spousal support anyway.  Like I said earlier—it may raise eyebrows and encourage suspicion on his part.)

But my agreement says I am “free to live as though single and unmarried”.

True.  That’s a common provision.  But, as far as provisions go, this one is more personally soothing than it is legally binding. Whether you have an agreement in place that says that or no, if you’re still married, it’s still adultery.  No provision in any agreement can un do that fact.  Will there be consequences?  Probably not.  But you should still know that, technically speaking, your agreement won’t protect you from the illegality of your actions.

If you were me, what would you do? Would you have a boyfriend after separation?

It’s hard to say.  I think, if you’re wanting to have a boyfriend after separation, I would wait until (1) you’re officially separated, and (2) you’ve got a signed separation agreement in places that both handles spousal support and includes the “free to live as though single and unmarried” provision.  At that point, though adultery is a crime, there’s little chance that your choices will impact your divorce.  (And by little, I mean there’s no chance.)  Whether you just go out to dinner or whether you take him home for dessert, too, is up to you and your own personal ethics.  Either way, I’m not judging.

So, are you going to get a boyfriend after separation?

Chances are, you’ll do what you want regardless of what I say; emotions are powerful things.  Still, if you’re considering a boyfriend after separation, I hope you’ll read and follow these tips.  I’d hate for someone to risk losing an award of spousal support over something that could be avoided.  For best results, avoid a boyfriend after separation until you’ve got a signed separation agreement in place.For more information or to set up a consultation with one of our attorneys, give our office a call at (757) 425-5200.

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