By David L. Duff of Duff & Kronfeld, P.C. posted in About The Law on Friday, July 19, 2019.
The question most frequently asked by a recently-separated spouse is: What kind of social life am I allowed to have while I wait for my divorce to become “final?”
As with many divorce issues in Virginia, the answer to this question is not always black and white, and is often dependent upon the factual circumstances of each particular case. Indeed, there is always both a “legal” answer, and a “practical” answer to this question.
Virginia recognizes adultery as one of three fault-based grounds for divorce (the others being cruelty and desertion); and, there is no distinction made between adultery that occurred before separation, and adultery that takes place after separation. Under Virginia law, you are legally married until a final divorce order has been signed by a judge. Therefore, engaging in sexual relations with another adult, not your spouse, will support a divorce on the grounds of adultery, regardless of whether it occurred pre-separation or post-separation.
That being said, the crime of adultery is defined in Virginia Code Sec. 18.2-365 as a married person voluntarily engaging in sexual intercourse with a person not his or her spouse. There is an entire constellation of romantic conduct/activity that falls short of “sexual intercourse” and, accordingly, cannot, and does not, constitute “adultery.”
Bottom Line: Once separated, there is no legal obstacle to carrying on a vibrant social life, so long as you draw the line at engaging in sexual relations – unless, of course, you are willing to accept the consequences attendant to an adultery-based divorce.
Now, the “practical” answer:
In the vast majority of divorces, there is generally only one spouse who wants the divorce, while the other spouse is either completely shell-shocked, or in utter denial. During the period of separation, if one spouse becomes socially active, or begins a romantic relationship with another person, then he or she is often perceived as having “moved on” with his or her life. This perception will, invariably, cause the other spouse to feel hurt, depressed and angry. These feelings are often manifested through sudden restrictions on visitation; a lessening in communication; and, unreasonable financial demands.
Bottom Line: If you hold any realistic hope of settling your divorce case with your spouse, whether on issues of custody, support or asset division, then you must be extremely discreet in your post-separation social life. Try to avoid being perceived as the one who has “moved on.”
If you have questions concerning post-separation issues in your divorce situation, contact an attorney at Duff & Kronfeld for a complimentary, 30-minute telephone consultation. (703) 591-7475.