Virginia Laws About Legal Separation & Dating

by Teo Spengler

Post-separation dating in Virginia may affect property and alimony awards.

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You and your spouse are on your way to a divorce in Virginia. You begin the mandatory one-year separation that entitles you to a no-fault divorce and even sign a separation agreement. It's little wonder that both of you think of your marriage as over, but look out: Virginia doesn't. Under Virginia law, you are married until you are divorced and if dating gets serious, you could find yourself without spousal support and even perhaps in jail on an adultery charge.

Virginia's Mandatory Separation Requirement

When you read that every state offers no-fault divorce, you may not have understood that some of these offers are conditional. In Virginia, your couple can only qualify for no-fault divorce after you live separately for an entire year. Since Virginia does not provide for legal separation, you will either have to organize finances during the year apart under a written separation agreement or else go through a suit for separate maintenance that settles alimony and custody but leaves you married without assets divided between you.

But buyer beware! Even if you negotiate and execute a settlement agreement or get a decree of separate maintenance from the court, you are still married in the eyes of the law in Virginia. That means that any dating you do, outside of the confines of the marriage, may be held against you in divorce court and beyond.

Consequences of Dating while Separated in Virginia

Can you date if you are legally separated in Virginia? Of course you can date if you are living apart under a separation agreement or decree of separate maintenance. But there could be consequences in the divorce case. If your spouse wants to, he can use your choice to date before your marriage is dissolved to obtain a fault divorce. Even if he doesn't go that far, the fact that you are dating during your marriage paints you as someone of questionable morals, which may impact custody, alimony or visitation issues.

If you negotiate a settlement agreement, be sure to talk to your attorney about including a clause that each spouse has the right to date others during the separation. That could stop your spouse from turning it against you.

Technically, if your dating leads to an affair, you've committed the crime of adultery. It's an open question whether that law is constitutional, but you probably could live your life perfectly well without being the test case on that.

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About the Author

Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Spengler splits her time between French Basque Country and California.