Post Separation Adultery – Why hooking up after breaking up is a bad idea.

Everyone knows adultery is wrong.  In fact, many of you may be surprised to know it’s still a crime in Virginia – under Code Section 18.2 – 365, adultery is a Class 4 misdemeanor.  It won’t get you thrown in jail, but it might get you a $250 fine and an extremely embarrassing day in court.  You can get a warrant for it down at the magistrate’s office if your spouse is misbehaving.

Sadly, lots of marriages are over long before a final decree of divorce is signed.  Many soon to be ex-spouses, in order to obtain a no-fault divorce, have split their belongings and are living separate and apart.  To obtain a no fault divorce in Virginia, you have to live separate and apart for at least one year.  The policy behind this law, passed by the General Assembly, is to provide for a period of separation that is long enough to ensure that a divorce is really what people want.  Without the one year requirement, there are a lot of people out there who would probably march down to the courthouse and file for a divorce every time they were in an argument.  Next day, they might be back for a marriage (we all know at least one couple like that).  Obviously, that would not be a good situation or policy for us to have in place if the goal is to encourage people in a marriage to work through the problems that arise.

But for a lot of people, that one year is a long time.  Perhaps a new flame has been kindled, and you are eager to move on.  If you are reading this right now and find yourself nodding, you need to check yourself and slow down.  In Virginia, post separation adultery – or adultery after you’ve separated from your spouse but before the divorce is final – is still adultery.  And that means that your ex-spouse can seek a fault based divorce against you, which has consequences.

Adultery has three main fallout effects in divorce law, on top of all of the major problems it has in real life.  First, it allows the non-cheating spouse to seek a divorce immediately.  Second, the cheating spouse is barred from receiving any spousal support unless manifest injustice would result.  Third, if you are the cheating spouse and your case goes to trial, it looks bad, and it’s very public.

In the Supreme Court case of Coe v. Coe, the wife committed adultery nine months after the parties had separated.  The husband discovered it because he had hired a private detective to tail his wife (yes that is real and doesn’t only happen in movies).  The court allowed the husband to amend his complaint for divorce to include adultery, and the divorce was granted on those grounds.  The wife was granted no spousal support as a consequence, despite a thirteen year marriage.

In the long run, many ex-spouses do move on, and that’s probably healthy.  Just don’t do it too soon; you never know when there’s a private detective around.


Scott Bucci

M. Scott Bucci - Partner, Bucci & Dix Law Firm |

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