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Is Sleeping With Someone Else While Separated Considered Adultery?

Is Sleeping With Someone Else While Separated Considered Adultery?

You might be wondering if you can date during a separation or if you have sex when you're separated if it's considered adultery.

Adultery is a legal term that refers to having sexual intercourse with someone who is not your spouse. Virginia Code § 18,2-365 defines adultery as, "Any person, being married, who voluntarily shall have sexual intercourse with any person not his or her spouse."

Adultery is a crime and if someone is convicted and found guilty of adultery, it punishable as a Class 4 misdemeanor. A Class 4 misdemeanor does not carry jail time and are generally punishable by fine.

For a spouse to be found guilty of adultery in a divorce proceeding, the court must find that the married spouse voluntarily had sexual intercourse with anyone other than a spouse. It's not enough to accuse the spouse of infidelity in the court documents. Instead, it needs to be proved that the affair happened by introducing witnesses, phone records, credit card or bank statements, or photos/video.

Is Sleeping with Someone Whilst Separated Adultery?

It can be difficult to go through the danger zone of separation. The marriage has broken down, the couple has separated either in the same house or in different household and may even agree that there is no chance of reconciliation. At this point though, the spouses are still married to each other and thus both are technically not allowed to have sex with someone else other than their spouse. If either of the spouse have met someone new and wish to pursue having sexual intercourse with their new partners, that act does amount to adultery. In Virginia, sleeping with someone not your spouse while separated means you've committed adultery.

Many still believe that if they have been separated from their spouses, their act of having sexual intercourse with someone other than their spouse does not count as adultery. Accordingly, from a legal perspective, if either spouse were to engage with a new partner and commit sexual acts, prior to the grant of a divorce decree, it is still considered adultery.

Separation in Many Forms

Separation takes many forms. Some spouses choose to still live under the same roof due to some reasons like they still want to provide a stable environment for their children, or because of financial reasons. You can be separated within the same house provided you do not have sexual intercourse with one another or carry out tasks for each other.

On the other hand, separation in separate households is much easier to understand. It is basically living in a separate house from your spouse and not having sexual intercourse with each other.

Other Effects of Adultery

There is no law that prevents you from dating (be careful- dating does not mean having sex) other people during your separation period, but it can be brought up in court, and it can affect the outcome of any pending or future divorce and child custody cases.

Even if you have a written separation agreement that says you can act as if you're unmarried or if you have a verbal agreement with your spouse that you two can date and have sex with other people, it's still adultery because you're still legally married.

Committing adultery in Virginia may affect the judge’s decision when considering alimony.

However, in child custody and child support cases, Virginia family courts generally do not consider whether one parent had committed adultery because the judge is focused on determining the best interest of the child. But although Virginia custody laws do not specifically list adultery in the evaluation, it still could indirectly affect custody if the court finds that the parent may potentially expose the child to dangerous persons or situations.


Is sleeping with someone else while separated cheating? Is dating while separated adultery in Virginia?The answer to both questions is yes, sleeping with someone when you're separated is an act of adultery.

It is vitally important to get the advice of a highly qualified and experienced divorce lawyer. If you are going through separation or divorce, contact Virginia Divorce Attorney Tori Bramble at (540) 628-7340 or visit our website at for more information.

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