If you’re in the process of divorcing your spouse, you may wonder if it’s ok for you to date other people while you wait for the paperwork to go through.
It may be that you and your spouse have agreed to go your separate ways, and one or both of you may have found someone new to share your life with before the divorce is finalized.
However, since you are still married until the divorce goes through, dating during the process counts as adultery.
Since adultery is one of the several fault-based grounds of divorce in Virginia, committing adultery (even if only in the legal sense) can significantly complicate your divorce proceeding.
For this reason, most attorneys will recommend that you hold off on dating until after your divorce.
In this article, we’ll outline the basics you should know if you’re considering whether you should date during your divorce.
Ultimately, only you can make the final decision in your case (preferably after speaking with an attorney).
However, in the majority of cases, it’s still often better to simply wait until you receive your final divorce decree before you put yourself back on the market.
Do Virginia Courts Recognize Legal Separation?
The most important topic to cover, and the place where people often mess up, is the question of whether Virginia recognizes “legal separation.”
There are two general ways to answer this question, depending on how you define legal separation:
- “Effectively” separated through legal documents (such as a “bed and board divorce” or a separation agreement).
- Living “separate and apart” as defined under Virginia law.
We’ll outline each below.
Using a Court Order to Separate from Your Spouse
While there is no official recognition of a “legal separation” in Virginia, there are two processes that are quite similar.
Someone who says they are legally separated might have obtained a “bed and board” divorce through the courts.
This is a process by which a separating couple may deal with some of the legal matters associated with a divorce, but they will remain legally married until they obtain an absolute divorce.
Someone who is separated may also have signed a separation or property settlement agreement.
This is a legal document that allows a separating couple to set the terms of their divorce before they involve the courts.
However, these aren’t the only ways to “separate” yourself from your spouse.
Living “Separate and Apart” During Your Divorce
More commonly, couples who consider themselves separated have begun living “separately and apart” as defined in Virginia law.
They may also have begun the process of separating their financial assets, and may be dealing with custody matters as well.
The date on which a couple starts living separately is considered a “date of separation,” which is an important milestone in obtaining a no-fault divorce in Virginia.
This type of divorce requires that a couple live separately for either six months or one year prior to filing for divorce.
Put more simply, your date of separation is the day you decided to get divorced, and acts as the starting point of the divorce process.
Periods of Separation in Virginia Divorce Cases (Where the Confusion Often Stems From)
After seeing the word “separation” on their divorce documents, clients will sometimes assume that they’re legally separated from their spouse, and can act as if they are no longer married.
However, this is not the case in Virginia.
Instead, you should think of your “date of separation” as the moment that starts your divorce process.
You’re still married, it’s just that the six-month to one-year “period of separation” starts on your “date of separation.”
To quote from the Virginia Code, Virginia residents may file for divorce:
“…if and when the husband and wife have lived separate and apart without any cohabitation and without interruption for one year…[or, if there are no minor children,] if and when the husband and wife have lived separately and apart without cohabitation and without interruption for six months.”Virginia Code § 20-91(9)(a)
Put another way, Virginia’s “period of separation” isn’t the “legal separation” you might find in other states, but, rather, a basic requirement for filing for divorce in the first place.
A Quick Example of this “Period of Separation”
For example, if you get into a fight with your spouse, state that you want to get divorced, and leave to live with a friend for a few weeks, you could use the date of the fight as your “date of separation.”
Then, six to twelve months later (provided you lived “separate and apart”), you could file for divorce and be done with the matter.
However, in the eyes of the court, you are still married until the judge signs your final divorce decree.
This is a very important point, as the court will consider any and all of your actions leading up to the final divorce decree as if you are still married to your spouse.
Put another way, anything you do during this period of separation (including dating) can be held up against the fact that you’re still technically married in the eyes of the court.
Consequences of Dating During a Divorce
With this important point in mind, you can see how there may be some complications in your case if you choose to date during your divorce proceedings.
We’ll note a few of the most common below, but keep in mind that the real point you should remember is that dating during your divorce will only give ammunition to your spouse’s attorney should they choose to use it.
What we list below are simply specific, common examples of what an attorney might do with that ammunition.
Accusations of Adultery Can Complicate Your Divorce
First and foremost, dating during your divorce proceedings can lead to accusations of adultery by your spouse or their attorney.
In Virginia, adultery is often used as the “grounds” for a fault-based divorce.
While the specifics of the fault-based divorce process are too broad to cover here, you should note that such an accusation could result in a longer, harder, and more expensive divorce process.
Further, if the court determines that you’ve committed adultery, you will also be barred from petitioning for spousal support (“alimony”).
The only exception is in cases where such a determination would constitute a “manifest injustice.”
This means that a fault-based divorce on grounds of adultery could lead to you receiving a smaller share of any contested marital property.
Basically, you should remember that, despite the fact that adultery is quite hard to prove in Virginia courts, it’s advisable to avoid a risk such as dating while you’re still going through the divorce process.
Potential Difficulties in Your Custody Battle
Dating can also have an effect on how the court determines custody and visitation for any minor children.
Specifically, judges will always determine custody based on the “best interests of the child.”
The Virginia Code lays out 10 factors regarding a child’s “best interests” which judges can use to make this determination.
Finding a new romantic partner during your divorce proceedings could potentially affect how a judge applies these 10 factors to your case.
For example, divorces are often incredibly taxing and emotional times for children.
For this reason, your child may react negatively to the presence of a new romantic partner during this time.
Looking again at the Virginia Code, factor four prioritizes the “needs of the child,” while factor eight gives weight to “the reasonable preference of the child.”
Similarly, factor ten notes that the judge may consider “such factors as the court deems necessary and proper to the determination.”
In just these three quick examples, you can see how a new relationship could potentially impact a custody battle, especially one that your children aren’t comfortable with.
Increased Tension With Your Spouse
As one final note, let’s throw away all the legal talk for a moment and consider the practical side of things.
Do you really want to risk antagonizing your spouse by dating during your divorce proceedings?
While this may seem like a simple question, it’s important to sit for a moment and think about what might happen if your spouse finds out that you’re dating.
Quick and easy divorces are grounded in the negotiations between the spouses.
If negotiations break down (i.e. if your dating causes your divorce to become “contested”), it will only result in further problems and additional expenses in the future.
For this reason, it may be helpful to think of dating during your divorce as a “risk” that could lead to costly problems down the line.
Whether or not you decide to take this risk is entirely up to you.
However, for most divorces, waiting a few weeks or months for your final divorce decree is usually the preferable option.
The Solution: Sign a Property Settlement Agreement
So far, we’ve outlined the worst case “what-if” scenarios that could occur if you choose to date during your divorce proceedings.
However, these scenarios aren’t the end-all-be-all of the situation.
If you want to date during your Virginia divorce, you should, at the very least, wait until after you negotiate and sign a separation agreement with your spouse.
This agreement will likely include language that state you and your spouse will live “as if single and unmarried” for the remainder of the divorce.
Such an agreement will provide you with a basic level of protection should problems involving your dating arise in the future.
However, please remember that intimate encounters with your dating partner still count as adultery under Virginia law, so it’s still advisable to stay single until after a judge finalizes your divorce.
Can you date during your Virginia divorce? Sure.
Should you date during your Virginia divorce? Probably not.
Because Virginia courts do not recognize legal separation, dating during your divorce could lead to problems down the line.
As a few of the most common complications:
- Your spouse could accuse you of adultery, potentially leading to a fault-based divorce. Such an accusation could bar you from spousal support (“alimony”) and might affect the distribution of marital property.
- If you’re in a custody battle with your spouse, the judge may also consider your new relationship when determining custody and visitation.
- Finally, on the practical side of things, dating could also lead to increased tensions with your spouse. Such tensions could make your divorce both longer and more expensive.
While the six-month to one-year waiting period may seem like a long time, you have to remember that you’re still married in the eyes of the law.
For this reason, most lawyers will advise against dating during your divorce proceedings, even during your “period of separation,” due to the risks involved.