If I Date Someone Else While Separated, Is it Adultery in Virginia?

Some marriages end long before divorce. The couple may have already decided to split their property, live apart, and move on from the relationship even with no divorce decree. If you are in this situation, it may feel like an appropriate time to date someone else. However, doing so may come with legal repercussions.

The first thing to remember is that if the divorce decree is not yet final, the two spouses are still legally married. Getting romantically involved with someone else during this period can constitute adultery, even if the two parties have lived apart for a while. This is sometimes called “post-separation adultery.”

Effects of Post-Separation Adultery in a Divorce

Even an amicable separation can become complicated if one spouse finds reason to claim that the other spouse has committed adultery. This claim can have several undesirable effects on the side of the alleged adulterer.

Damaging Property Distribution Claim

When the court decides on the division of property during divorce, among the things it considers are “factors which contributed to the dissolution of the marriage” (Virginia Code § 20-107.3). If one spouse finds evidence of adultery, they could claim that this infidelity contributed to the end of the marriage. The court may subsequently award a smaller share of assets and property to the adulterer.

Damaging Alimony Claim

A spouse seeking spousal support (alimony) is best advised not to date while the divorce is not yet final. This is because the court will likely bar any spousal support to a party who committed adultery.

Damaging Child Custody Claim

The primary standard in determining child custody is the best interests of the child. One parent’s adultery, by itself, is not grounds to deny them child custody. However, it could impact the court’s decision as to whether or not the child is best cared for by that parent.

The other parent could convince the court that their ex-spouse’s adultery indicates an unwholesome lifestyle not suited for a child. They could also bring up questions about the adulterer’s spending priorities, time available for the child, and emotional guidance for the child.

Further, adultery is a crime in Virginia, classified as a Class 4 misdemeanor under Code § 18.2-365. While this typically results in no more than a fine, it paints an unfavorable picture of the adulterer as a parent, which the other parent may leverage in a child custody case.

The Need for Proof in an Adultery Claim

For a spouse to use adultery as grounds for divorce in Virginia, they need to provide clear and convincing proof of the adulterous act. This can be difficult because Virginia law defines adultery as voluntarily having sexual intercourse with someone who is not your spouse. Even if a spouse confessed to dating someone else, they might still be able to deny that they had a sexual relationship outside of the marriage. This is an area where the help of a competent attorney can be indispensable.

Consult an Experienced Virginia Divorce Attorney

If you’re concerned about dating while separated, or if you believe that you have grounds to claim adultery against your spouse, talk to a reliable Family Law attorney. Our attorneys here at Holcomb Law, P.C. are experienced in complex divorce matters, including those around separation, adultery, alimony, and child custody. 

Call us today at (757) 656-1000 to schedule a confidential consultation.