Jumping back into the dating scene after separating from your spouse can sound fun but the consequences can make your divorce complicated.
Virginia Does Not Recognize Separation
Regardless of your physical or emotional separation, in Virginia, you are either married or divorced in the eyes of the law – this is true even if you have been physically living separate and apart from one another for years. You also cannot get an Order of legal separation which is sometimes available in other states. While no law prohibits dating (note that dating does not mean sex) other people while you are separated from your spouse, it can affect the outcome of any pending or subsequently filed divorce and child custody proceedings.
Here are some of the risks of dating during the divorce and separation process:
Adultery
While it is not a crime to date (lunch, dinner, movies, etc.) during your separation, adultery is something you should be concerned about. Adultery, or having sex with a partner other than your spouse while married, is a Class 4 misdemeanor in the state of Virginia. Depending on when the adultery occurred and whether it is continuing, it is also one of the fault-based grounds for divorce. If you are seeking spousal support, a proven case of adultery can affect your receipt of alimony.
Custody Concerns
In divorce cases where the parties have children, complications can arise. Courts decide custody and visitation terms based solely on the best interest of the child. While there are many contributing factors to a court’s ruling, an immediate introduction to a new partner can raise concerns as can a parent spending significant time away from the children to pursue a relationship.
Tension Troubles
Divorces can be costly and exhausting. Dating during this process often exacerbates the issues already at hand, making it more difficult for you and your soon-to-be ex-spouse to resolve the financial and custody issues arising out of your marriage. However comfortable both parties are about the idea of divorce, it can understandably be jarring to see your spouse with someone new (whether in person or through social media) within weeks or months of a decision to separate. A breakdown in communication because one party chooses to date may occur, resulting in the parties having to go to court – instead of being able to resolve issues between themselves.
When to Speak With an Attorney
No court of law can dictate your personal dating choices, and dating (again, brunch, hiking, concerts, etc. – but not sex) itself will not get you in legal trouble. But it is essential to be aware of the consequences of your actions and try not to make an already challenging situation a lot tougher. If you are considering a divorce or have questions about dating during separation, please contact Alan Plevy at abplevy@smolenplevy.com or Kyung (Kathryn) Dickerson at kndickerson@smolenplevy.com.
About the Authors
Alan Plevy
Alan Plevy is a recognized force in family law, mediation and litigation, with more than 40 years as one of the most experienced divorce lawyers in Virginia. Mr. Plevy is known for being a tenacious litigator and negotiator who is zealously devoted to his clients. A top legal publication, Virginia Lawyer Weekly, noted Mr. Plevy’s impact on the law when it named two cases he litigated among its Top Five Landmark Family Law Cases in Virginia. Those two cases, which date back to the 1980s, are still regularly cited by attorneys and courts.
Kyung (Kathryn) Dickerson
Kyung (Kathryn) Dickerson is a principal at SmolenPlevy in Vienna, Virginia. She is a graduate of the University of Virginia and George Mason University School of Law, where she served on the Board of Editors for the Journal of International Legal Studies. Ms. Dickerson is also presently General Counsel for the Asian Pacific American Bar Association of Virginia and has served as President of the organization and on its Board of Directors. She has also served on the Board of Directors of the Virginia Women Attorneys Association and served as its President. She has served on numerous committees of the Fairfax Bar Association and as President of its Young Lawyers Section and as Co-Chair of the Revenue Development Committee.
