Comedian Ben Bailey has a routine on odd expressions, including “Have your cake and eat it too.” You can either have your cake or you can eat it. Why would you have cake if you were not going to eat it? Getting a separation from your wife and having a girlfriend at the same time, though, is a bit like having cake and also eating it.

It’s All about Optics

In modern political parlance, “optics” refers to the public perception of a political move. The impression you leave with your wife, her attorney, and the presiding judge may not be a very good one, should you and your girlfriend decide to live in the same space during your separation.

A separation in Virginia is almost always the preamble to divorce. It has a start date that allows you and your wife to count down to a filing date for the divorce from matrimony. You did not sign anything to separate; one of you moved out (or not, as we have seen). Virginia does not have “legal separation” as a construct under the Code of Virginia. This means when you two separate, you both have to understand what’s at stake:

  1. Are you separating to heal, reflect, take responsibility, and return to make the marriage healthier?
  2. Are you separating as a genteel way to slide right on into divorce?

Virginia Code (§ 20-91 and § 20-107.1) recognizes a separation agreement or property settlement agreement. It is the path to uncontested divorce.

Taking a girlfriend into your home during a separation that is ostensibly for contemplation, meditation, and rejuvenation is a really bad idea. Do not just take our word for it; the folks at Live About frown on it, for several reasons:

  • You look like a schmuck
  • If you and your wife have kids, it confuses them
  • It could be a problem with the divorce, later

This is why we say, optically, that taking a girlfriend into your home during your separation period is not a good idea.

During Separation, What’s On Trial?

If you two have agreed to a “trial separation,” who is on trial? Are you experimenting with being alone as a way to detect lingering feelings for her, or are you testing the waters of singlehood to see if you still have game?

Your morality and ethics are on trial during a trial separation. If you and your wife agreed to separate as a way to save your marriage, honor that commitment. Leave any potential girlfriend in the distant future.

Be honest with your wife before you two separate. Bloggist Leslie Cane points out several useful endeavors you should take during your separation:

  1. Allow your wife to miss you, and you to miss her — If you are separating, separate; do not text and call and email and Skype six times a day and five more at night
  2. Work on yourself — Delve into the issues that are driving you two apart
  3. Convey a lightness of being — When you two do contact each other, show your positive side

Notice nothing in that list includes “Invite your girlfriend to move in.”

So During Separation, Can You Shack Up with Your Girl Legally?

Virginia law does not give a green light to having a girlfriend while married, but neither does it go out of its way to exact harsh punishment. Suppose you are legally married to your wife, move out, start the separation clock, and then rent a U-Haul so your girlfriend can move in. You are setting yourself up for charges of adultery under Virginia Code § 18.2-365:

Any person, being married, who voluntarily shall have sexual intercourse with any person not his or her spouse shall be guilty of adultery, punishable as a Class 4 misdemeanor.

A Class 4 misdemeanor is punishable by a fine of not more than $250 per incident. To put this politely, you could “have” your girlfriend four times for $1,000, should you be charged and found guilty four times. You might consider that little more than the cost of doing business.

Envision yourself before a divorce judge in a Virginia courtroom. Your girlfriend moved in soon after you separated from your wife six months ago. Your wife diligently documented and charged you every time you, er, “had your cake and ate it too.” You now have a police record for serial misdemeanor offenses.

You broke Virginia law. That weakens your position during the divorce. Again, though, do not take our word for it. Level-headed Forbes magazine also says the girlfriend is a bad idea.

In Summation

While taking on a girlfriend and having her move into your home while you are married is illegal (even with a relatively small punishment), it is also bad for your future legal position. If you want to have your cake — your intact finances and a happy future free of legal conflict — avoid eating it during your separation. Otherwise, that momentary feeling of bliss from your girlfriend could turn into years of painful payments to your ex-wife.

With your call to The Firm For Men at 757-383-9184, or by contacting us online, you can be put in touch with a separation agreement lawyer dedicated to defending men’s rights in Virginia. We’re the only family law firm in Virginia protecting men exclusively, and with offices in Virginia Beach and Newport News, we’re just a short drive from anywhere in Hampton Roads. Call today to schedule a consultation!

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