Virginia Divorce and Custody Issues: Can I move in with my boyfriend?

Can I move in with my boyfriend?

Whenever I’m asked a “Can I?” question, I get a little bit nervous. There’s always a couple of different answers. First and foremost, the answer is yes – you’re a big girl, you can make your own decisions. But it’s almost always a little more complicated than that. You’re not asking, of course, whether you’re physically capable of moving in with your boyfriend, or whatever it is you’re planning on doing. You’re asking me – will it hurt my divorce or custody case? Right?

In general, I think it’s a good idea not to make any big changes – including moving in with a new boyfriend – unless and until your case is over and there’s nothing in your final order or agreement prohibiting this behavior. Still, keep in mind, custody and visitation are ALWAYS modifiable based on a material change in circumstances, and you’re probably opening the door to a potential modification by making any changes at all, especially if it has an adverse impact on your child.

Let’s break it down, though, and talk about the different issues associated with moving in with a boyfriend in the divorce and custody context.

Moving in with a boyfriend in a divorce case

Let’s take the whole kid thing out of it for a minute, and just look at what impact moving in with a boyfriend can have on a divorce.

Remember adultery? It’s that whole thing where you sleep with someone (I’m not talking about dating, I’m talking about actual oral, anal, or vaginal sexual intercourse – sorry, not to get too graphic on you) who isn’t your spouse.

You’re married until you’re divorced so, if you have a divorce case currently going on, you’re still married. That means that you’re committing adultery. Now, there’s often a difference between how judges treat pre and post separation adultery, but be careful – starting a relationship too soon, even if you’ve already separated, can suggest to a judge (or, worse, be possible for your husband’s attorney to prove) that you started it prior to separation.

Adultery does all sorts of things to your case. For one thing, it’s an absolute bar to spousal support – so, if you were counting on it, forget about it. Even if you’ve already agreed to support, cohabitation with another person in a relationship analogous to marriage is grounds for termination of that support – so, yeah, financially, that’s kind of an important thing to know.

Adultery also often makes cases more difficult, time consuming, and expensive. And, technically, it’s also possible that the judge could make a different allocation of the assets than 50/50 because of your “negative nonmonetary contribution” to the marriage. If the judge feels like your adultery led to the breakdown of the marriage, well, that’s not good.

It’s probably best, safest, and smartest to wait to move in with your boyfriend until a final divorce decree has been entered and you’re actually free to enter into a new relationship. It probably seems like the period of separation in Virginia is unfairly long, and that may be so, but there’s no sense making your case worse in the meantime.

Moving in with your boyfriend in a custody case

So, if you and your husband have children together, you’ve got more to worry about than whether or not your behavior constitutes adultery (though those rules still apply).

When you’ve got kids together, you don’t just divorce and that’s it – you’re done. For so long as you have minor children, there’ll be the possibility that the court will be used to modify your current custody and visitation arrangement. Remember that custody is always modifiable based on a material change in circumstances, and many families find themselves in court year after year on different petitions for modification.

Your boyfriend is relevant. If he’s a registered sex offender, someone with a drug or alcohol history or addiction, or someone with a criminal record more serious than a speeding ticket – you’re going to want to cut him loose. Right now. There’s really no reason to even discuss this. Know who he is, and make sure that you’re thinking, “How would this look to the judge?” When you’ve got a minor children it’s not a good time to relive your 16 year old bad boy fetish.

It’s really not a good idea to move in with your boyfriend when you’ve got minor children. Like it or not, Virginia courts are pretty conservative. And, probably, it’s safe to say that the same rules don’t apply to your husband. But if you’re not willing to take the chance that you’ll lose some parenting time, it’s probably not a good gamble.

You want to look steady and reliable, and like your children are your number one priority. I know they are – and I’m not suggesting that they aren’t – but for judges it seems like mom moving in with a boyfriend (or, worse, a series of boyfriends) suggests that her first thought isn’t for her children.

Maybe that’s not fair. Maybe your guy is a stand up citizen who dotes on your children and works a legitimate job and is everything you ever dreamed a man could be. I’m so happy for you! I love, love, love to hear that my clients find love after their divorces, and I certainly hope that if you haven’t yet done so, you will. There’s a lot to be said from learning from your past mistakes and then crafting a future that is what you’ve always envisioned.

I also don’t want to suggest that you enter into another marriage just so that you can live together. That sounds like a recipe for disaster. Though convenient, make sure that, when/if you remarry, you do so for the right reasons and with the intention that it will last. You know this, of course, but still – it bears repeating.

In custody cases, my opinion is that it’s better safe than sorry – and it’s better NOT to move in with a boyfriend than the alternative. You set yourself up for the possibility of difficult, time consuming, and expensive litigation where your commitment to your children is called into question.

It’s not fair. But does that even matter? I mean, yeah, ideologically, it does. But when it comes down to whether you’re willing to risk your custody case on it – well, that’s a personal question.

There are always exceptions, and sometimes it works out. But I think it’s probably a better idea to assume the answer is no, and not do it, than it is to do it and hope for the best. After all, this isn’t like, say, a relocation, where you have a hearing to determine whether you’re allowed to do it. This is risky, because you would either decide to move your boyfriend in – or not – and then you have to deal with the consequences when/if it comes up in court.

I probably don’t need to tell you that, if your custody case is in just a few weeks, it’s a really bad idea to suddenly move your boyfriend in. At least wait until AFTER your current litigation ends, and, better yet, to talk to an attorney one-one-one before you make any big changes to your situation.

Best to wait until the point that you feel like you really are ready to commit to a lifetime with him and make it official, rather than hoping for the best when you move in with a boyfriend.

To talk about your case specifically, give our office a call at 757-425-5200 to schedule a confidential consultation with one of our licensed and experienced Virginia divorce and custody attorneys.

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