However, unlike with alimony, such post-separation adultery is only a factor in equitable distribution if it occurs prior to the court issuing a temporary order in the case. (2) marital misconduct or fault of either or both parties, whether or not used as a basis for a divorce as such, if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage; provided, that no evidence of personal conduct which would otherwise be relevant and material for purposes of this subsection shall be considered with regard to this subsection if such conduct shall have taken place subsequent to the happening of the earliest of: (a) entry of a pendente lite order in a divorce or separate maintenance action; (b) formal signing of a written property or marital settlement agreement; or (c) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties. Ideally such dating should be confined to public places and there should be no public displays of affection beyond friendly hugs.
There is an actual reported case in which a spouse’s post-separation adultery was considered as a factor in equitable distribution. One still needs to prove opportunity to commit adultery and an inclination to commit adultery to prove adultery.
If you cannot file on grounds, and you do not have the 12 month separation period to file for no fault grounds (or you just don’t want to file for divorce) – there are still options for invoking assistance from the court.
Divorce is filed in Circuit Court, which is the highest court in each county in Virginia.
Often clients will ask how to file for “Legal Separation” in Virginia.
The quick answer to that question is: you can’t really.
(Note, however that you need only be separated for 6 months if the parties have no minor children and have a written property settlement agreement that resolves all issues arising out of the marriage.)This raises the question of what is a “date of separation?
” Simply put, the date of separation is the date that you and your spouse stopped marital cohabitation and intended for the cessation of marital cohabitation (separation) to be permanent.
In a no-fault divorce, you are not accusing your spouse of wrong doing (hence the name “no fault”).
This blog is intending to help litigants understand these risks. Code § 63-15-240(B) sets forth sixteen specific criteria for the family court to consider when determining child custody. Alimony and property division can also be affected when a spouse dates prior to a final order of separate maintenance.
A whole subset of risk arises when child custody is an issue. A parent’s immoral behavior is not one of these criteria; however, it can be of some relevance in a custody case. Dating often leads to accusations of adultery, and sometimes dating leads to actual adultery.
No case law discusses circumstances in which a supporting spouse’s post-separation adultery affected alimony. However once a final order of separate maintenance has issued this should probably not be a concern for a client who wishes to date so long as that client does not expose his or her children to those he or she dates.
An unreported 2014 Court of Appeals opinion, , reversed an award of permanent alimony in part because the family court incorrectly treated the husband’s post-separation adultery as “fault for the breakup of the marriage.” Post-separation adultery can also be a factor in equitable division. Code § 20-3-620(B) states: In making apportionment, the court must give weight in such proportion as it finds appropriate to all of the following factors … For a client who wishes to date after separating but before divorcing the key is to reduce the risk that the dating does not lead to a credible adultery claim or a claim that this dating was the cause of the breakup of the marriage.
Marital cohabitation simply means living together as husband and wife (or spouse and spouse) and doing all the things that married spouses typically do (such as cooking for each other, doing laundry for each other, sleeping in the same bed, etc.).