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Virginia Laws About Legal Separation & Dating

by Jill Stimson

Couples divorcing in Virginia may divorce for fault-based reasons or no-fault reasons. No-fault divorce grounds are for irreconcilable reasons without intent to remain married. The couples simply live apart for one year if there are minor children and a valid property settlement agreement. If there are no children and a valid agreement, then the separation period may be reduced to six months instead of one year. Fault-based divorce reasons include abandonment and desertion, cruelty or adultery. Couples divorcing should not consider dating until the divorce is final.

Proving Adultery

Virginia courts require sexual intercourse to prove adultery. Emotional outpourings are not sufficient to prove adultery. These factors can be used as circumstantial evidence with other proof, such as an all-night stay at the lover's house. Proving the ex-spouse committed adultery becomes difficult once the spouse is no longer living in the marital house. Virginia circuit courts require conclusive evidence to show the spouse committed adultery. The court will weigh all of the evidence and make a determination as to whether adultery was committed--and if so, the effect of the adultery on the property division or alimony award.

Adultery Defenses

1. Condonation occurs when the non-adulterous spouse has forgiven the behavior by cohabiting with the adulterous spouse after knowing the adultery occurred. 2. Procurement or connivance occurs when the other spouse actively facilitated the adulterous spouse into cheating. 3. Recrimination excuses the adulterous spouse from the illicit behavior because the other spouse is proven to have committed adultery and is also at fault. 4. Time barred or statute of limitations serves as an affirmative defense when the adultery occurred after five years.

Property Distribution

Judges may consider adultery when dividing property. Virginia is an equitable distributions state which means that judges will attempt to divide marital property equitably during the divorce proceedings. Marital property is property acquired during the marriage. Separate property is the property that each spouse owned prior to the marriage which was not commingled into marital property. If the parties are not able to reach a mutually acceptable agreement divvying up the property, the court will make the division on their behalf.

Fault

Recent legislative changes to Virginia's divorce law over the past decade allow for adulterous spouses to request alimony payments. Prior to this new rule, adultery was considered as a complete bar for a spousal support award. Although judges are still allowed to consider post-separation adultery as a factor to refusing to award spousal support, it is no longer a complete defense.

Custody and Visitation/Child Support

Adultery does not typically affect these decisions unless the other spouse is able to prove the adultery has detrimentally impacted the child's well-being. Virginia courts have a long-standing desire to involve both parents in the upbringing of their children. The child's best interests are paramount. Adultery does not impact the noncustodial parent's basic child support obligations. These are determined strictly by using child support guidelines based on pro-rata income shares.

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