I am often asked by clients whether it is okay for them to pursue new romantic relationships after they separate from their spouse. The common impression that these clients have is that living separate means they can live as if they are single and that it is okay for them to start dating new people. They are surprised when I tell them that having a sexual relationship with someone after they are separated or even after a divorce is filed can have adverse legal consequences to them.
Adultery is a ground for divorce in Virginia. Virginia court decisions have made it clear that it makes no difference if the adultery occurred before or after a separation. See Coe v. Coe, 225 Va. 616, 620, 303 S.E.2d 923, 925-26 (1983) and Rosenberg v. Rosenberg, 210 Va. 44, 168 S.E.2d 251 (1969). Post-separation adultery is still adultery. Additionally, Virginia Code §8.2-365 currently makes adultery a criminal offense, punishable as a Class 4 misdemeanor.
Adultery comes with consequences. If a court finds by clear and convincing evidence that post-separation adultery has occurred, the court can bar the offender from receiving spousal support unless doing so would result in a manifest injustice. Additionally, the court can consider post-separation adultery as a factor when dividing marital property and debts and potentially award less property and more debt to the offender. The court could also consider post-separation adultery when deciding custody and visitation arrangements of minor children. If for instance, the husband or wife’s paramour has a troublesome background, the court might find it best to limit the children’s exposure to this person.
Post-separation adultery can act as an absolute bar to a claim for spousal support, which can be a disaster for a party in need of support. In the Coe v. Coe decision cited above, the wife alleged that the husband was guilty of cruelty and desertion due to his act of leaving her and their children and physically abusing and humiliating her. After a divorce was filed, the husband hired a private investigator to follow the wife and dig up dirt on her. His plan worked, and the private investigator successfully collected compromising evidence that implicated the wife in having an illicit affair. The husband asked the court for permission to amend his divorce complaint to include an allegation that the wife was guilty of post-separation adultery.
The court permitted the amendment and ultimately denied the wife’s cruelty and desertion claims due to insufficient evidence, granted the husband a divorce based on the wife’s post-separation adultery, and barred the wife from receiving any spousal support despite her being married to the husband for 13 years. Had the wife not had the post-separation affair, she likely would have received support which would have gone a long way in helping her maintain her household.
Another consequence of post-separation adultery is that it can prevent a party from prevailing on his or her own adultery claim. Under the doctrine of recrimination, a party is barred from having a divorce granted on the basis of adultery if he or she is proven to have committed adultery as well. For instance, a husband may have a solid adultery case against his wife and be in a position to avoid paying spousal support to her, but if he commits adultery after separation his case could potentially go out the window.
If a party proves that his or her spouse has committed post-separation adultery, the guilty spouse may end up disadvantaged when it comes time to distribute property and determine the amount and duration of spousal support. Courts rely on a set of statutory factors when determining spousal support and the division of property (also called equitable distribution). The spousal support statute (Virginia Code § 20-107.1) and the equitable distribution statute (Virginia Code § 20-107.3) both list as a factor the “circumstances and factors which contribute to the dissolution of the marriage, specifically including any ground for divorce.” One common argument is that post-separation adultery cannot be the cause of the breakdown of the marriage because it did not lead to the separation, so the court should not use this as a basis to award more or less property or support. Many trial courts are persuaded by this argument, and from a practitioner’s standpoint, this argument should be raised. However, appellate decisions have made it clear that post-separation adultery can be considered as a cause of the breakdown of the marriage in that it makes reconciliation less likely See Derby v. Derby, 8 Va. App. 19, 24, 378 S.E.2d 74, 76 (1989); Coe v. Coe, 225 Va. 616, 620, 303 S.E.2d 923, 925-26 (1983); Rosenberg v. Rosenberg, 210 Va. 44, 168 S.E.2d 251 (1969). Thus, post-separation adultery could end up hurting the guilty party financially when it comes time to divide property and determine spousal support.
Once it becomes clear that dating after separation can have serious consequences, the next question I get is “what if my spouse and I agree that we can see other people and that we will not use this against one another as a divorce ground?” Unfortunately, a separation agreement cannot sanction this conduct. Contracts that violate statutes enacted to safeguard morals are illegal and unenforceable and will not be recognized by the court. Adultery is still illegal in Virginia, so an agreement to commit adultery would violate public policy. However, having such an agreement could still be useful since it could be used as defense to a later adultery claim in a divorce under the theory of connivance. “Connivance is the consent, either expressed or implied, of one spouse to the proposed misconduct of the other spouse. One who consents to another’s misconduct may not seek a divorce based on the misconduct.” Hollis v. Hollis, 16 Va. App.74, 77, 427 S.E. 2d 233, 235 (1993). In Hollis v. Hollis, the husband and wife signed an agreement stating that the wife agreed that the husband could move out of the home and acknowledged that this could entail moving in and living with another female. She agreed that she would not use this against the husband as a ground for divorce. She also made other comments before the agreement that encouraged the husband to start a new life with his girlfriend. Despite the agreement and these statements, the wife turned around and filed for divorce based on adultery. The trial court denied the wife’s adultery claim and granted the husband a no-fault divorce based on the wife’s consent and encouragement of the adultery. The Virginia Court of Appeals affirmed the trial court’s decision.
As a practical matter, it may not be possible for one spouse to get the other spouse to agree to not file an adultery claim. It would especially be unusual for one spouse to actively encourage the other spouse to pursue a new relationship. Talking about the issue may just make the other spouse suspicious that something is going on and could make things even worse than they already are. If an agreement is reached, but only verbally, the agreement could be hard to prove later after the divorce is filed. Additionally, the existence of an agreement does not make the conduct legal. Although adultery is rarely prosecuted in Virginia, it still is a crime.
For those contemplating starting a new relationship after separation, the safest course of action is to be patient and wait until the divorce is finalized.