Key Components of Virginia Separation Laws
When talking about separation law, it’s important to distinguish between "physical separation" and "legal separation." A physical separation simply means that the parties no longer live together. In Virginia, you don’t need approval from a court to separate just physically or an agreement. You do need an agreement or court approval to separate legally. For the purposes of this blog post, we are discussing legal separation.
A legal separation means that the parties have either entered into a partial or limited divorce agreement or they have obtained a legal separation from a court. If the parties want to obtain an absolute divorce, one type of legal separation is generally required. Virginia does not have a "legal separation" statute. However, getting a limited divorce is the same as obtaining a legal separation. In other words , a limited divorce serves the purpose of a legal separation in Virginia.
A limited divorce does not mean that you are limiting your divorce, but rather it is the only divorce for a period of time. In other words, if you seek a limited divorce in Virginia (also called a "divorce a mensa et thoro," which is Latin meaning "from bed and board") and you and your spouse reconcile, you can have your limited divorce dismissed. If you and your spouse live separate and apart for at least one year after the limited divorce is granted and you still have not reconciled, you can then convert the limited divorce into an absolute one and be divorced. Virginia does not require a "legal separation" in order to file for divorce. However, some states, such as North Carolina and South Carolina, do require you live separate and apart for some period of time before you can obtain a divorce.
Implications of Dating While Separated
Legal Implications of Dating During Separation in Virginia
Dating while separated is generally not considered cheating in the legal sense, as there is no longer a marital relationship. However, the new relationship may have a significant impact on your case. At first, the most concerning issue in terms of your proceedings may be an emotional one. For example, many people entering new relationships during separation are still emotionally tied to their spouse. When they introduce a new person to the children, they may be subject to a lot of questions that require careful navigation. The most serious question, however, has to do with adultery. Is there any behavior taking place in your new relationship that could be considered cheating? Theoretically, it is possible to cheat on your spouse even though you are separated. Activities like sexual intimacy or spending noticeably more time with your new partner than with your spouse may lead the court to believe that the separation was not consensual. Additionally, being caught in such behavior could lead to allegations of adultery in your divorce case. Remember: divorce lawyers are required to be honest with the court about any evidence they find, so if the other person in your new relationship is aware that your spouse will find out about your dates, he or she may be cautious about what they do and say in your company. Additionally, if the relationship raises issues of financial misconduct — for instance, if you move in with your new partner, perhaps even rent out part of the residence and live off the proceeds — it may have a negative impact on how any dissolution of the marriage is finally decided.
Privacy and Personal Considerations
Privacy Considerations
As with many non-standard areas of practice, discretion is key for many professionals. Your lawyer is a key part of your "team" and is likely to have plenty of information about you in his or her files. Another important aspect of your legal situation is your privacy, which is another reason why your lawyer is so important. Many people have a right to access family law documents even when they are sealed under Virginia law- so don’t underestimate the importance of a good billable relationship with your attorney.
In addition to your privacy, of course, the privacy of opposing parties and their lawyers must be respected as well. As an attorney, this means that you cannot freely disclose any information that you know relating to your case to others. Even if, as a professional, most of this information would not be too shocking or scandalous to the average person, it is still subject to attorney-client privilege and confidentiality obligations.
While of course every state has its laws regarding privilege, the general standard in most states (including Virginia) is that, in order for a communication to be protected by the attorney-client privilege, the communication must be:
- Between a lawyer and a client;
- For the purpose of providing legal advice (which does not include commercial or business advice);
- Made in confidence; and
- Made with the expectation that it will be kept confidential.
Lawyers are also usually mutually bound as to their own statements when the statements are made in the context of pleadings, motions, and other documents relating to the case. However, they are less particularly bound as to statements made simply in the course of conversation.
Of course, you also need to consider the privacy implications of your dating relationship. Are there any potential legal problems that might arise from your new relationship? Does the other person have a violent history that might put you and your children at risk? The right attorney and team can help you navigate these difficult questions and others.
Effects on Separation Agreements
The impact of dating on settlement agreements is an area with no clear legal precedent to rely on, so case law will be given as a resource. In general, how dating impacts settlement agreements really comes down to how you and the other party feel about dating during the separation period. No matter where you stand on this issue, it’s important to check in with yourself regarding what impact dating would have on your settlement negotiations.
For instance, if income from another person is affecting your financial situation, you may want to bring that out into the open. If you’re on the receiving end of spousal support payments from your ex and dating someone else, having that income as part of your household may be seen negatively by the court. The same is true if you’re the one paying spousal support. If you’re dating someone who is providing you with significant monetary resources, the court may question whether your obligations are as significant .
Your settlement agreement may also have some bearing on whether a relationship is affecting your property division. Are you still living in your shared home? Are you living in the house as you and your spouse owned it? What changes are you making to the property that could affect your financial interests in the property at separation? If you’re moving in with someone new, how will your marital assets and liabilities be impacted? Again, how you feel about these issues may be the most salient question.
There isn’t yet clear law on the books regarding dating during the separation period. As such, there are certain factors the court does look at, including how your dating is modifying the lifestyle you shared with your spouse and whether or not one spouse is inside the marital residence after separation while the other is not.
Guidelines for Dating During Separation
Dating during this period of time should be deliberate or cautious. There are many issues of timing, location, social circles and moving on that must be carefully navigated if you do not want to negatively impact your legal situation. For example, if custody is a big issue in your case, introducing your new love interest to your children is going to have a big impact. Is this person appropriate for the children to be around? What does this person have to say about your ex? Depending upon what it is, dating before the divorce is finalized could hurt your custodial chances and result in a reduced custody preference.
You should also consider the financial and spousal support consequences of dating. If you are living with someone, that person might be expected to contribute to your household bills, which could affect your alimony request. In some instances, the date may be paying for the bills and expenses of both parties. You need to also be concerned about those types of items being used by your spouse, ex-spouse or former domestic partner against you in court, if you are not careful.
Other things to avoid during dating before divorce are posting prematurely on social media, getting caught in the act, visiting places where your spouse may be regularly, or even parading your single status through your personal life or professional life. Even if you are not married, an estranged relationship is still a relationship that can affect your reputation and how others in your personal network view you. Having someone new is going to become an issue of gossip if you make it too obvious too soon. This is something you should consider before you jump in with both feet.
Considerations When Consulting with a Family Law Attorney
While the information provided in this blog can be helpful in understanding the issues that may be faced , it is highly recommended that you speak with a family law attorney regarding your specific issues and facts prior to dating during separation. There are many ways to approach your case, and having the right attorney who understands your specific needs is beneficial.