If you and your spouse have officially separated and are waiting for your divorce to be finalized, you may be tempted to dive back into the dating scene. However, in Virginia, a post-separation sexual relationship is still considered adultery. If you are considering a post-separation relationship, continue reading to learn the potential consequences.
What is Adultery in Virginia?
In order to commit adultery in Virginia, one spouse must have engaged in a sexual relationship outside of the marriage. Although infidelity can come in many forms, including an emotional or mental affair, it must be of a physical, or sexual nature in order to be considered adultery.
To be granted a divorce on adultery grounds, one spouse must present clear, convincing, or corroborated evidence demonstrating that the other spouse engaged in a sexual relationship outside of the marriage. Meeting this standard typically requires evidence gathered by a private investigator confirming the affair.
A sexual relationship is legally considered adultery until the divorce is finalized – this includes the time period between the date of separation and the divorce.
How Could Post-separation Adultery Affect Divorce in Virginia?
Spousal support
Adultery, whether it is pre- or post-separation, has the biggest impact on spousal support. If a spouse is found to have committed adultery, then that spouse is barred from receiving spousal support. There is a rarely used exception known as “manifest injustice,” where the court may grant support to a party who has been found guilty of adultery, provided there is evidence of a substantial income disparity between the parties and proof that the non-adulterous spouse was also responsible for the breakdown of the marriage.
Child custody or visitation
Adultery is not an explicit factor that Virginia courts are directed to consider when it comes to child custody or visitation. Post-separation adultery can be considered during custody, but evidence of adultery, without more, is an insufficient basis upon which to find that a parent is an unfit custodian of his or her child. However, it could become relevant if the spouse having the affair exposes the children to his or her romantic partner. A judge could view this as the parent’s inability to assess the children’s emotional needs, which is a factor the Court must consider in determining custody and visitation in the best interest of the children. The Court also has the authority to place limitations on when a spouse may introduce children to a new romantic partner.
Equitable distribution
Courts are required to consider the circumstances and factors that led to the dissolution of the marriage when determining how to distribute marital property in Virginia. However, a finding of adultery by one spouse is usually only relevant if the affair had an economic impact on the marriage. This often requires an extreme circumstance, such as if one spouse had been secretly paying for housing for the affair partner (sometimes known as the “paramour’).
Should you Reconsider a Post-separation Relationship?
If you are seeking spousal support, it may be best to hold back off on dating or seeking out a post-separation relationship until the divorce is finalized. If you would like to learn more about navigating a post-separation relationship, please call Cooper Ginsberg Gray today to schedule a consultation with one of our experienced family law attorneys.