Barry J. Waldman, Esq.
January 21, 2009
Divorce is a complex field filled with misconceptions. One of the most common misconceptions among the General Public in Virginia is the concept of “Legally Separated.” Many potential divorce litigants believe that if they are “Legally Separated” they will enjoy greater freedom and have some form of preferred status. Standard in these beliefs is the misconception that if you can become “Legally Separated” you can date whoever you want, engage in sexual acts with whoever you want and that responsibility toward a spouse is either eliminated or significantly reduced. Unfortunately all of these beliefs are fallacies. Simply put, Virginia does not recognize the status of being “Legally Separated.”
In Virginia, for many purposes, people are either married or they are not. Separation is but a fact in the case, not a “status.” Separation is an important fact that opens many of the options for parties to employ the Court system to resolve their differences, but is merely a fact. Only a court can terminate the legal relationship of marriage, in most circumstances requiring the parties to be separated in fact, prior to doing so.
The danger of the public’s common misconception of “Legal Separation” is that this misconception is often employed to justify behavior that is contrary to Virginia law and may negatively affect the individual both criminally and in matters relating to their divorce.
It is still a crime in Virginia to engage in Sexual Relations with someone who is not your spouse. Adultery is still a crime under Virginia law as of the date of this article. It is Class 4 misdemeanor in most circumstances, in certain circumstances it is a Class 1 misdemeanor, and in certain rare circumstances it can be a Class 5 or Class 3 felony! Thus, although prosecutions for adultery are infrequent, convictions can carry heavy fines, a jail sentence in some circumstances, and in rare circumstances, a prison term of multiple years.
Adultery committed while under the misconstrued notion that one is somehow “Legally Separated” can still affect the results in a Divorce case or in related issues. Adultery is still a ground for divorce, whether it occurs before or even after separation. Even separation for a significant period of time, does not magically evade Adultery as a basis for the Court granting a divorce. Those who are found to have committed Adultery will generally be barred (with limited exceptions) from receiving spousal support. A Judge can also consider the adulterous behavior when dividing assets (items of value) and debts between the divorcing parties.
Adultery can effect the result in custody matters. Though not specifically required to do so, a Judge is permitted to place emphasis on the adulterous behavior in making custody and visitation decisions. It is not the only issue considered in these decisions, but can be quite embarrassing, and in some circumstances very influential in decisions of the Court relating to the care of a child.
The perception that responsibility to a spouse is eliminated, or significantly curtailed, when “Legally Separated” can have significant negative consequences. Even though spouses may be separated, Virginia law contains provisions in both the criminal and non-criminal context that require support and assistance to children and the other spouse. Unpaid medical bills can still be collected from either spouse. Joint debts can still be collected from either spouse. Failure to ensure reasonable living conditions for the other spouse can be considered in divorce related decisions.
People who are facing the erosion of their marriage, and are contemplating a divorce, face a potential minefield. The assistance of an attorney is crucial to ensure that these individuals can make informed decisions. Decisions which can effect the financial well being of the parties and the well being of the parties’ children can have lasting impacts. Many of these poor decisions can be minimized or eliminated by receiving competent legal advice. Some errors simply cannot be fixed. Think before you leap to conclusions, and, instead, get sound advice. You will generally be much better off if you do.
Barry Waldman can be reached at 540-891-1414 or at reception@waldman-law.com .
** This article is provided as general information only and should not be relied upon in place of receiving advice directly from an attorney licensed to practice law in the state having jurisdiction over your case. The information provided is intended solely to encourage individuals to seek the advice of an attorney and does not, in and of itself, constitute advice provided to the reader.