I’m separated and dating… will this hurt my case?

Written by Rebecca Melone on . Posted in , .

You’ve been through the hard part – you and your spouse separated and you’ve been moving through your divorce. You start living your separate lives and realizing you are ready to move on. But what about your divorce? If your case isn’t final yet, things can get complicated quickly.

It can take a while to get a divorce in Virginia. For spouses with children under 18, it can mean waiting a year to file for an uncontested divorce. Contested cases can take 1-2 years depending on the number of issues in the case and local court schedules. By the time your case is final, chances are both spouses will have moved on to new romantic relationships. But what impact can that have on your custody case?

Introducing a new romantic partner to your children will be relevant in your case, whether or not the grounds for divorce are contested. Courts determine custody and visitation based on the best interests of the child standard in Virginia Code Section 20-124.3, which considers all evidence that could be relevant to the court in making a custody determination.

Are you really “separated”?

Virginia defines separation as having two elements: first, the spouses must start sleeping separately, and second, one spouse must have the intent that the separation be permanent. In some cases, it can be unclear when the separation started. Frequently, spouses may start a separation only to reconcile and then separate again. Deciding that a separation is “final” is an essential element of the case. Before entering into a new relationship, consider whether the other spouse is aware and would agree that you are “separated.”

Temporary Visitation

If your case is pending, the court may make a temporary custody and visitation order, referred to as pendente lite, so there is a set schedule while you wait on your trial date. Many courts will impose restrictions on “overnight guests” who are not related to the child while the divorce case is pending. Some courts will further restrict introduction of any romantic partners to children without approval of the other parent.

If a spouse has moved in with a new partner, their visitation may be extremely limited while the case is pending. They may be limited to visitation at the other parent’s house, or with a third party, and they may not have any overnight visitation while the case is pending.

Best Interests of the Child

Any social or dating relationships can come into evidence in your custody case. The other parent may try to show that you are not focused on your children, rather you are focused on dating and having a social life. For the benefit of your case, you should keep social media posting and use of dating apps or websites to a minimum during your case. Consider whether your spouse could find, download, and present your post in court – how would it reflect on you as a parent?


In Virginia, even post-separation relationships can be considered adultery. Most courts will not impose criminal penalties and many judges will not award a divorce based on adultery, but it’s important to know that it may be an issue in your case. For that reason, most divorce attorneys will recommend using discretion in pursuing new relationships.


Even after your divorce is final, a new relationship can always create a basis to modify custody. Some factors the court will consider include whether your new partner has a criminal history, whether there’s an objection from the other parent, and what impact the relationship has on the best interests of the children. A new spouse can be a basis to modify custody – and can be a good or bad change for the parent. In some cases, introduction of a new spouse shows the court responsibility, development of a family unit, and other beneficial aspects for the children.

About Melone Hatley, P.C.

If you’ve started a separation and you’re considering dating, it’s time to get counsel. Getting advice on the next steps can help you avoid a critical mistake and ensure your rights are protected. The top-rated attorneys at Melone Hatley, P.C. are here to help! Melone Hatley, P.C. is a family and estate firm serving Virginia Beach and Northern Virginia. Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service.  Through our high standards, we strive to be a trusted resource to our clients.

We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives.  For more information about separation and divorce, contact our Reston office today at 703.995.9900 or Virginia Beach at 757.296.0580 or visit our website: www.melonehatley.com.

Rebecca Melone

Rebecca Melone established Melone Hatley P.C. in 2014 with the goal of helping families with a range of legal services from estate and family law to traffic tickets and misdemeanor criminal matters. Over the past five years the firm has grown and expanded its services to include a wide range of estate and elder law services. Rebecca has been awarded Super Lawyers Rising Stars for 2016, 2017, 2018 and 2019 and has been named one of the top family and estate attorneys under 40 in Virginia.
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