Legally, while one is separated from one's spouse, one is NOT supposed to take up residence with another love-interest. This is known as 'post-separation adultery'. Adultery is THE ONLY fault-based grounds on which you do not have to wait for a one year separation time period in order to get a final decree of divorce (if there are children- it's six months IF you and he can agree to a Marital and Property Settlement Agreement disposition of your assets).
The question is, are there assets which are worth the cost to fight over? Many people realize that it's really not worth the attorney's fees and related expenses to battle over a marriage that is 'dead' when there aren't children involved. Best recommendation -- get a consultation with a domestic Relations Attorney and then decide whether it's worthwhile to incur the costs needed to prove his post-separation adultery.
Legal issues often depend on the specific facts in any given case or situation. Please do NOT utilize the information you receive as either a binding legal opinion in your case, nor presume that I am your counsel because I've answered a question you had. Any legal representation is accomplished by written contract ONLY, signed by each of us.
I agree with Ms. Fraser's response to your question. To that response I would add the following:
1. That someone is living in the same residence as another person is not, in and of itself, clear and convincing evidence of adultery -- you would need more evidence than that condition alone.
2. A person can live with someone else while separated in Virginia, in the sense that they are free to share a dwelling space with whatever roommates, friends, and/or "someone"s that they may chose to. In order for it to be "adultery" in Virginia, it requires the act of engaging in sexual intercourse with another person who is not their spouse (even when it occurs post-separation, but pre-divorce).
This relates back to point number 1 -- i.e., can you prove that is the nature of the relationship. If it is a dwelling with 2 or more bedrooms, he could claim that this other person is just a roommate/friend and that they have not been intimate. You may not be able to sufficiently refute that claim -- not without paying a private investigator for months to collect contradictory evidence.
So, it may not be worth worrying about too much. However, if there are children with overnight visitations involved or unique facts that may make spending the time and money to prove adultery a benefit that is worth the cost to you, then you may want to pursue it. I would suggest that you have a consultation with a family law attorney and definitely raise this issue during that consultation.
This response does not create an attorney-client relationship and is intended for general information purposes only.
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