Divorce attorneys are frequently asked this question, and there is no correct answer. In Virginia, being “separated” from your spouse is not the same as being divorced and there is no legal status called “separation.” You are either married or divorced. Hence, a separated person can be found guilty of adultery if he/she has intimate relations with a person other than his/her spouse. Hence, many attorneys advise against dating before the divorce is final in order to avoid any complications with regard to settlement or litigation, if the case is going to court.
This is generally good advice, but it should be told that most judges in Virginia do not care about “post-separation” adultery and will not consider it a factor in equitable distribution. If there has been no allegation of adultery in the initial complaint, and the plaintiff is seeking a no-fault divorce, the plaintiff would have to seek to amend his/her complaint if evidence of adultery were discovered after the filing of the complaint, and this rarely occurs. However, if there are accusations of adultery in the complaint or in the counterclaim filed by the defendant spouse, the question arises as to what the non-offending spouse should do with respect to dating. This is a difficult question to answer, but most attorneys would advise their clients to be cautious and wait for the divorce to be final. There is a legal principle called “clean hands,” i.e., you do not want to go to court trying to prove that your spouse is an adulterer if, in fact, you are one also, even if it is only post-separation adultery. You want to go to court with “clean hands.”
In addition to the legal reasons for dating or not dating after separation, there are psychological and emotional issues to consider as well. While I am not qualified to give psychological advice, I have been told by mental health professionals that too often the decision to date is poorly thought out, may be an emotional reaction, and is something that may be regretted later. Anyone who is in the middle of a divorce should seek the aid of a mental health professional and discuss whether dating is wise in this situation.
The impact of dating while a divorce is pending on the couple’s children should also be taken into account. Custody agreements frequently will contain stipulations concerning the exposure of minor children to the “dates” of either spouse, of either the opposite or the same gender. A common provision is that there be no overnight stays by persons with whom there might be a romantic affiliation when the children are present. Courts generally approve of such restrictions and will enforce them.
The psychological impact on the children also must be considered. Many children are not ready to accept that their mother or father is dating until well after the divorce. In assessing this impact, the ages of the children are relevant. Older children may understand the need of the parent to start dating, but still may not be ready to accept it without harboring some resentments. Again, discussion with a mental health professional who deals with families may be appropriate here.
In the final analysis, divorcing spouses should seek advice from legal and mental health professionals before dating and the decision to date should not be undertaken impulsively.