Can A Legally Separated Couple in Virginia Date Other People?

Full question:

After trying counseling, etc. We decided to separate. I moved into a Virginia rental apt. ( signed lease) and my two teenage sons live with their dad in another Va community nearby. I see the boys frequently and our separation is very amicable. We have a signed, notarized PSA . In Va., it was explained that we need to be separated one year before filing for divorce. Are 'Sam' and I allowed to date other people until that year is up and divorce filing can occur? (Also- FYI...I am paying spousal support to him in addition to paying my own rent b/c my name is still on the mortgage associated with the property where he and our sons live and he cannot manage that without my contribution.)

• Category: Divorce
• Subcategory: Legal Separation
• Date: 04/07/2025
• State: Virginia

Answer:

If parties are legally separated, they are still married and capable of committing adultery. Adultery is a grounds for divorce in Virgina and can be used as a consideration by the court in awarding alimony and dividing marital property.

Please see the following VA statute:

§ 20-107.3. Court may decree as to property of the
parties.

A. Upon decreeing the dissolution of a marriage, and also upon
decreeing a divorce from the bond of matrimony, or upon the filing with
the court as provided in subsection J of a certified copy of a final
divorce decree obtained without the Commonwealth, the court, upon request
of either party, shall determine the legal title as between the parties,
and the ownership and value of all property, real or personal, tangible
or intangible, of the parties and shall consider which of such property
is separate property, which is marital property, and which is
part separate and part marital property in accordance with subdivision A 3.
The court shall determine the value of any such property as of the date
of the evidentiary hearing on the evaluation issue. Upon motion of either
party made no less than 21 days before the evidentiary hearing the court
may, for good cause shown, in order to attain the ends of justice, order
that a different valuation date be used. The court, on the motion of
either party, may retain jurisdiction in the final decree of divorce to
adjudicate the remedy provided by this section when the court determines
that such action is clearly necessary, and all decrees heretofore entered
retaining such jurisdiction are validated.

1. Separate property is (i) all property, real and personal, acquired
by either party before the marriage; (ii) all property acquired during
the marriage by bequest, devise, descent, survivorship or gift from a
source other than the other party; (iii) all property acquired during the
marriage in exchange for or from the proceeds of sale of separate
property, provided that such property acquired during the marriage is
maintained as separate property; and (iv) that part of any property
classified as separate pursuant to subdivision A 3. Income received from
separate property during the marriage is separate property if not
attributable to the personal effort of either party. The increase in
value of separate property during the marriage is separate property,
unless marital property or the personal efforts of either party have
contributed to such increases and then only to the extent of the
increases in value attributable to such contributions. The personal
efforts of either party must be significant and result in substantial
appreciation of the separate property if any increase in value
attributable thereto is to be considered marital property.

2. Marital property is (i) all property titled in the names of both
parties, whether as joint tenants, tenants by the entirety or otherwise,
except as provided by subdivision A 3, (ii) that part of any property
classified as marital pursuant to subdivision A 3, or (iii) all other
property acquired by each party during the marriage which is not separate
property as defined above. All property including that portion of
pensions, profit-sharing or deferred compensation or retirement plans of
whatever nature, acquired by either spouse during the marriage, and
before the last separation of the parties, if at such time or thereafter
at least one of the parties intends that the separation be permanent, is
presumed to be marital property in the absence of satisfactory evidence
that it is separate property. For purposes of this section marital
property is presumed to be jointly owned unless there is a deed, title or
other clear indicia that it is not jointly owned.

3. The court shall classify property as part marital property and
part separate property as follows:

a. In the case of income received from separate property during the
marriage, such income shall be marital property only to the extent it is
attributable to the personal efforts of either party. In the case of the
increase in value of separate property during the marriage, such increase
in value shall be marital property only to the extent that marital
property or the personal efforts of either party have contributed to such
increases, provided that any such personal efforts must be significant
and result in substantial appreciation of the separate property.

For purposes of this subdivision, the nonowning spouse shall bear the
burden of proving that (i) contributions of marital property or personal
effort were made and (ii) the separate property increased in value. Once
this burden of proof is met, the owning spouse shall bear the burden of
proving that the increase in value or some portion thereof was not caused
by contributions of marital property or personal effort.

"Personal effort" of a party shall be deemed to be labor, effort,
inventiveness, physical or intellectual skill, creativity, or
managerial, promotional or marketing activity applied directly to the
separate property of either party.

b. In the case of any pension, profit-sharing, or deferred compensation
plan or retirement benefit, the marital share as defined in subsection G
shall be marital property.

c. In the case of any personal injury or workers' compensation recovery
of either party, the marital share as defined in subsection H of this
section shall be marital property.

d. When marital property and separate property are commingled by
contributing one category of property to another, resulting in the loss
of identity of the contributed property, the classification of the
contributed property shall be transmuted to the category of property
receiving the contribution. However, to the extent the contributed
property is retraceable by a preponderance of the evidence and was not a
gift, such contributed property shall retain its original
classification.

e. When marital property and separate property are commingled into
newly acquired property resulting in the loss of identity of the
contributing properties, the commingled property shall be deemed
transmuted to marital property. However, to the extent the contributed
property is retraceable by a preponderance of the evidence and was not a
gift, the contributed property shall retain its original classification.

f. When separate property is retitled in the joint names of the
parties, the retitled property shall be deemed transmuted to marital
property. However, to the extent the property is retraceable by a
preponderance of the evidence and was not a gift, the retitled property
shall retain its original classification.

g. When the separate property of one party is commingled into the
separate property of the other party, or the separate property of each
party is commingled into newly acquired property, to the extent the
contributed property is retraceable by a preponderance of the evidence
and was not a gift, each party shall be reimbursed the value of the
contributed property in any award made pursuant to this section.

h. Subdivisions A 3 d, e and f of this section shall apply to jointly
owned property. No presumption of gift shall arise under this
section where (i) separate property is commingled with jointly owned property;
(ii) newly acquired property is conveyed into joint ownership; or (iii)
existing property is conveyed or retitled into joint ownership. For
purposes of this subdivision A 3, property is jointly owned when it is
titled in the name of both parties, whether as joint tenants, tenants by
the entireties, or otherwise.

B. For the purposes of this section only, both parties shall be deemed
to have rights and interests in the marital property. However, such
interests and rights shall not attach to the legal title of such property
and are only to be used as a consideration in determining a monetary
award, if any, as provided in this section.

C. Except as provided in subsection G, the court shall have no
authority to order the division or transfer of separate property or
marital property which is not jointly owned. The court may, based upon
the factors listed in subsection E, divide or transfer or order the
division or transfer, or both, of jointly owned marital property, or any
part thereof. The court shall also have the authority to apportion and
order the payment of the debts of the parties, or either of them, that
are incurred prior to the dissolution of the marriage, based upon the
factors listed in subsection E.

As a means of dividing or transferring the jointly owned marital
property, the court may transfer or order the transfer of real or personal
property or any interest therein to one of the parties, permit either
party to purchase the interest of the other and direct the allocation of
the proceeds, provided the party purchasing the interest of the other
agrees to assume any indebtedness secured by the property, or order its
sale by private sale by the parties, through such agent as the court
shall direct, or by public sale as the court shall direct without the
necessity for partition. All decrees entered prior to July 1, 1991, which
are final and not subject to further proceedings on appeal as of that
date, which divide or transfer or order the division or transfer of
property directly between the parties are hereby validated and deemed
self-executing. All orders or decrees which divide or transfer or order
division or transfer of real property between the parties shall be
recorded and indexed in the names of the parties in the appropriate
grantor and grantee indexes in the land records in the clerk's office of
the circuit court of the county or city in which the property is
located.

D. In addition, based upon (i) the equities and the rights and
interests of each party in the marital property, and (ii) the factors
listed in subsection E, the court has the power to grant a monetary
award, payable either in a lump sum or over a period of time in fixed
amounts, to either party. The party against whom a monetary award is made
may satisfy the award, in whole or in part, by conveyance of property,
subject to the approval of the court. An award entered pursuant to this
subsection shall constitute a judgment within the meaning of § 8.01-426
and shall not be docketed by the clerk unless the decree so directs. The
provisions of § 8.01-382, relating to interest on judgments, shall apply
unless the court orders otherwise.

Any marital property, which has been considered or ordered transferred
in granting the monetary award under this section, shall not thereafter
be the subject of a suit between the same parties to transfer title or
possession of such property.

E. The amount of any division or transfer of jointly owned marital
property, and the amount of any monetary award, the apportionment of
marital debts, and the method of payment shall be determined by the court
after consideration of the following factors:

1. The contributions, monetary and nonmonetary, of each party to the
well-being of the family;

2. The contributions, monetary and nonmonetary, of each party in the
acquisition and care and maintenance of such marital property of the
parties;

3. The duration of the marriage;

4. The ages and physical and mental condition of the parties;

5. The circumstances and factors which contributed to the dissolution
of the marriage, specifically including any ground for divorce under the
provisions of subdivisions (1), (3) or (6) of § 20-91 or § 20-95;

6. How and when specific items of such marital property were acquired;

7. The debts and liabilities of each spouse, the basis for such debts
and liabilities, and the property which may serve as security for such
debts and liabilities;

8. The liquid or nonliquid character of all marital property;

9. The tax consequences to each party;

10. The use or expenditure of marital property by either of the parties
for a nonmarital separate purpose or the dissipation of such funds, when
such was done in anticipation of divorce or separation or after the last
separation of the parties; and

11. Such other factors as the court deems necessary or appropriate to
consider in order to arrive at a fair and equitable monetary award.

F. The court shall determine the amount of any such monetary award
without regard to maintenance and support awarded for either party or
support for the minor children of both parties and shall, after or at the
time of such determination and upon motion of either party, consider
whether an order for support and maintenance of a spouse or children
shall be entered or, if previously entered, whether such order shall be
modified or vacated.

G. In addition to the monetary award made pursuant to subsection D, and
upon consideration of the factors set forth in subsection E:

1. The court may direct payment of a percentage of the marital share of
any pension, profit-sharing or deferred compensation plan or retirement
benefits, whether vested or nonvested, which constitutes marital property
and whether payable in a lump sum or over a period of time. The court may
order direct payment of such percentage of the marital share by direct
assignment to a party from the employer trustee, plan administrator or
other holder of the benefits. However, the court shall only direct that
payment be made as such benefits are payable. No such payment shall exceed
50 percent of the marital share of the cash benefits actually received by
the party against whom such award is made. "Marital share" means that
portion of the total interest, the right to which was earned during the
marriage and before the last separation of the parties, if at such time
or thereafter at least one of the parties intended that the separation be
permanent.

2. To the extent permitted by federal or other applicable law, the
court may order a party to designate a spouse or former spouse as
irrevocable beneficiary during the lifetime of the beneficiary of all or
a portion of any survivor benefit or annuity plan of whatsoever nature,
but not to include a life insurance policy. The court, in its
discretion, shall determine as between the parties, who shall bear the
costs of maintaining such plan.

H. In addition to the monetary award made pursuant to subsection D, and
upon consideration of the factors set forth in subsection E, the court may
direct payment of a percentage of the marital share of any personal
injury or workers' compensation recovery of either party, whether such
recovery is payable in a lump sum or over a period of time. However, the
court shall only direct that payment be made as such recovery is
payable, whether by settlement, jury award, court award, or otherwise.
"Marital share" means that part of the total personal injury or workers'
compensation recovery attributable to lost wages or medical expenses to
the extent not covered by health insurance accruing during the marriage
and before the last separation of the parties, if at such time or
thereafter at least one of the parties intended that the separation be
permanent.

I. Nothing in this section shall be construed to prevent the
affirmation, ratification and incorporation in a decree of an agreement
between the parties pursuant to §§ 20-109 and 20-109.1. Agreements,
otherwise valid as contracts, entered into between spouses prior to the
marriage shall be recognized and enforceable.

J. A court of proper jurisdiction under § 20-96 may exercise the powers
conferred by this section after a court of a foreign jurisdiction has
decreed a dissolution of a marriage or a divorce from the bond of
matrimony, if (i) one of the parties was domiciled in this Commonwealth
when the foreign proceedings were commenced, (ii) the foreign court did
not have personal jurisdiction over the party domiciled in the
Commonwealth, (iii) the proceeding is initiated within two years of
receipt of notice of the foreign decree by the party domiciled in the
Commonwealth, and (iv) the court obtains personal jurisdiction over the
parties pursuant to subdivision A 9 of § 8.01-328.1, or in any other
manner permitted by law.

K. The court shall have the continuing authority and jurisdiction to
make any additional orders necessary to effectuate and enforce any order
entered pursuant to this section, including the authority to:

1. Order a date certain for transfer or division of any jointly owned
property under subsection C or payment of any monetary award under
subsection D;

2. Punish as contempt of court any willful failure of a party to comply
with the provisions of any order made by the court under this section;

3. Appoint a special commissioner to transfer any property under
subsection C where a party refuses to comply with the order of the court
to transfer such property; and

4. Modify any order entered in a case filed on or after July 1, 1982,
intended to affect or divide any pension, profit-sharing or deferred
compensation plan or retirement benefits pursuant to the United States
Internal Revenue Code or other applicable federal laws, only for the
purpose of establishing or maintaining the order as a qualified domestic
relations order or to revise or conform its terms so as to effectuate the
expressed intent of the order.