Sleeping with the Enemy - Sex, Cohabitation, and Pre-Divorce Separation

As always, before reading my post, please review my disclaimer by following the link on the top of the page or clicking on this link.

Introduction

Most people getting a divorce in Virginia understand that if they want to obtain a no-fault divorce they have to be separated for a minimum period of time - a year for most couples, but 6 months if there are no children and there is a signed property settlement agreement which resolves all issues.  When the time comes to finalize the divorce, you will sign an affidavit, testify in a deposition, or testify in court, and amongst the things you will have to swear is that you and your spouse "have lived separate and apart without cohabitation and without interruption" for the required period of time.  While that may seem simple enough, six months or a year can be a long time, and many things can happen.  A surprising number of questions might arise as to what "without cohabitation" and "without interruption" means.  I hope to address some of those questions in this blog post.

The One Night Stand

Perhaps the most common source of questions I have seen while practicing law in this field comes from an issue that might shock many people.  It usually starts with a sheepish, half-embarrassed build-up, until finally the client blurts the question out.  "My spouse and I had sex last night, we still want to get divorced, but do we have to start the whole separation clock over again?"

So, perhaps I should back up a bit.  Post-separation sex with your spouse is a minefield of potential issues.  If you were to come to me beforehand and ask if I thought it was a good idea, my advice would be no, it's not.  First of all, if you are thinking about having sex with your spouse from whom you are separated, perhaps you should take this as a sign that one of the other statements you will have to swear to in your divorce, that "there is no hope of reconciliation," may not be true.  If you are that interested, maybe you should take it as a sign that you should be talking to a marriage counselor instead of a divorce attorney.

But, perhaps the biggest reason I would advise against it is that it makes you vulnerable to accusations.  Specifically, there is a long history in Virginia, where "marital rape" remained legal for a very long time, of husbands insisting that, prior to an actual divorce, the husband could have sex with his wife whenever he wanted to, and then forcing the issue.  This has created a, I would suggest deserved, perception within the legal community that post-separation sex has a heightened chance of being non-consensual.  If your spouse has been particularly vengeful during the course of your divorce so far, a false rape allegation is certainly not inconceivable - and it would be very hard to disprove.  Moreover, depending on the nature of your separation, you could find yourself in a situation where those hormones start raging, then they mix with some anger you may have over the separation, and suddenly you are unwilling to take no for an answer.  Then you actually do end up raping your spouse, and if you rape your spouse, you have committed a felony and there is little help your divorce attorney can provide you.

So, now that I've given my spiel about why, if you want to have sex with your estranged spouse, you shouldn't do it but should go see a marriage counselor and maybe give reconciliation a shot, I'll get back to the question that started this section.  If you ignore all my advice here, and have sex with your spouse, but still want to get divorced, what does it mean for your separation?

Well, unless you are in an arranged marriage (and, depending on the tradition, sometimes even then), you probably had feelings for your spouse at one point in time - you did marry him/her after all.  It's not entirely unreasonable or unnatural that, in a moment of emotional weakness, you may find yourself giving in to a romantic evening and a passionate night.  The fact is, the courts recognize this, and one night of sex with your spouse is not considered "cohabitation" or an "interruption" in the separation.  As a result, barring an unusual circumstance (or, this being the 10th "one night only" with your spouse of the separation), having sex with your spouse once will probably not restart the clock and delay your divorce.  Again, however, do think twice before you do it.

The Weekend Retreat

Ok, so if one night of sex doesn't delay the divorce, what about a weekend together.  The question usually comes in the form of "My parents convinced me and my spouse to spend a weekend together at a couples retreat hosted by our church to try to patch things up.  It didn't work, but we stayed in the same room together the whole weekend.  Does the separation start over?"  The other form I hear can be "I had a rough week at work, my spouse has the kids for the weekend, and we all thought it would be nice if we could spend the weekend as a family, so I stayed at my spouse's house for the weekend, and we shared a bed.  Does the separation start over?"

This question starts to get trickier, since this sounds like an "interruption" to the period of separation, doesn't it?  Well, the courts long ago concluded, I think correctly, that the public policy of the Commonwealth of Virginia is to encourage as many marriages to stay together as possible.  As a result, the courts decided that the General Assembly when enacting the divorce laws likely did not mean to "punish" couples who make an effort to work things out.  As a result, the courts came up with the idea of a "trial reconciliation."  A trial reconciliation is basically a brief period of living together in which you try to patch things up.  The rule, then, is that a trial reconciliation, legally speaking, is neither "cohabitation" nor an "interruption."  As a result, if the trial reconciliation doesn't work out, the clock does not restart.

Now, there is no hard and fast rule to how long a trial reconciliation can be before it becomes an actual reconciliation (which does count as "cohabitation" or an "interruption).  What I have seen most often is that a weekend is just a trial reconciliation, while longer than a week is treated as a full reconciliation.  The time in the middle can be a toss-up.  A weekend together, however, likely will not get you in trouble.

Sleeping on the Couch

So, we've covered two of the three most common "interruptions" to separation periods that don't actually count as an interruption, and now I want to touch on the third.  This inquiry usually comes in one of two ways.  "While my spouse and I were separated, I bought a house, but my lease ran out a month before settlement.  My spouse agreed to let me crash on the couch has their place for that month.  Did this break the separation?"  More commonly, however, I get this inquiry "We can't afford separate places until our home is sold, but we don't want to hold off our divorce that long.  Does it count as a separation if I move to the basement?"

The Code actually only uses the phrase living "separate and apart."  Nothing in the law requires that you live "separate and apart" in different buildings.  The courts have long recognized the concept of "separation under the same roof."  You can actually live in the same house the whole separation period if you want.  You just can't "cohabitate as husband and wife," and you'll need to have someone who comes over often who can testify to the fact that you haven't been cohabitating.

The test I see used most often to see if you are cohabitating, or actually separated, is usually by asking the following questions:

1. Are you sleeping in the same room?
2. Are either of you cooking meals for the other?
3. Are either of you doing the other's laundry?
4. Are either of you sharing parts of the house at the same time?
5. Are either of you cleaning up after the other in "their" part of the house?
6. Are you having meals together?

If you can answer "no" to all six of those questions, you will usually be found to have been separated under the same roof, and the separation period continues as normal.  Answering yes to even one may cause problems, however, so you should be careful if you are trying to live separately under the same roof.

Conclusion

Even though at the time of divorce you will swear that you have lived separate and apart "without cohabitation" and "without interruption," there are plenty of interruptions that typically don't "count" under the law.  A one night stand with your spouse, spending a weekend together, or living separately but in the same home all qualify in this area.  As usual, however, a single blog post cannot cover all possibilities.  If you are in the process of a divorce, but want to make sure you're not breaking the separation, your best advice is to contact an attorney.  If you are in the Northern Virginia area, you should feel free to call (703)281-0134 or e-mail SLeven@thebaldwinlawfirm.com to set up a consultation with me.  The initial consultation is free for up to half an hour.