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Is there a statue of limitation for adultery under the UCMJ? Do civilian or divorce courts care about military charges?

Henderson, NV |

My husband who is an officer (O-2) has been having an affair with an enlisted person (E-7). I told his supervisor about the cheating but decided not to tell them it was with another servicemember because I did not want to be the reason his military career was ruined (I'm sure he could do that himself). Also, he needs a way to support our young children. We are in the process of a divorce and he told me he might get out of the military. I found out that he is still seeing that same person, who is encouraging him to get a divorce. He has been trying to hide this fact that they are still seeing each other, presumabily because he doesn't want his command to find out. But he has used my children and his need to have "alone time" with them as an excuse and way to see her out of state without me knowing. If my husband gets out of the military and the woman retires or gets out of the military as well, can they still be charged with adultery through the military and have any compensation owed to them taken away? What is the statue of limitations? If my husband is court-martialed, will the civilian courts take that into consideration when deciding custody?

Attorney Answers 4


  1. That's a handful of questions, and I'll try to briefly answer them. If your husband is currently having an affair, then the Statue of Limitations is not so important because it's an ongoing affair that is current. The Statute of Limitations is in the Uniform Code of Military Justice. I'm not going to give you the exact information (legal advice) but you have a couple years to report - however, understand the military can only take any action if they have jurisdiction over the service member. Once he is out of the military, the military can do nothing.

    There are 3 elements to adultery (sex with someone not your spouse and it must be service discrediting). It's often not service discrediting, even though the first two elements are met. If you report it, realize that you are using the 'nuclear option' - it could very well end his career, destroy his income earning potential in the future (for your children - thereby lowering his child support ability), and in a worse case he could go to jail and be dismissed from the military which would be quite severe penalty. It is unlikely your husband would be court-martialed. The likely result would simply be that he would be investigated, and if the allegations true, he would be punished with a General Officer Article 15, which essentially involves reprimands and possibly fines (a few thousand dollars) and then he would likely be kicked out with a less-than-honorable discharge.

    I would encourage you to seriously weigh your options before pulling the trigger on that. Divorce, cheating, etc. is all very nasty business, but try to take the high road, be amicable, and simply get an uncontested divorce. You may find that reporting him harms your family unit more than it helps and while it may feel good in the moment, cooler heads should prevail. It could push the divorce from uncontested (inexpensive and easy) to contested (expensive and difficult), harm his earning potential in the future (thereby lowering child support), etc.

    Civilian courts may, or may not, care. That is state specific and outside the scope of this information.

    Good luck.

    *NOT LEGAL ADVICE. YOU HAVE NOT PAID ME A RETAINER. WE DO NOT HAVE AN ATTORNEY CLIENT RELATIONSHIP. This is general information for educational purposes only. You should always hire a lawyer and reveal all the unique facts to get the best answer for your unique situation. Answering this question on a public forum does not create an attorney-client relationship.


  2. Generally, whether an affair constitutes adultery requires that the government be able to prove that he had sexual intercourse with a certain person, that he was married to someone else at the time, and that under the circumstances, the conduct was to the prejudice of good order and discipline or of a nature to bring discredit upon the armed forces. There are many factors that would determine whether or not your husband's conduct would meet these requirements. The hardest element to prove is whether his conduct was service discrediting, this generally requires that his affair affect his unit in some way.

    In regards to custody, generally the courts consider the best interest of the child. I am not licensed in Nevada, so I can not give you the specific requirements there. I can say that I would recommend against reporting your husband's actions just to possibly benefit in a child custody case.

    The information provided is for general informational purposes only and not intended to be legal advice. If you require legal advice, please consult with a competent attorney licensed to practice in your jurisdiction.


  3. The statute of limitations for Article 134 is two years for imposition of Art. 15 punishment, and five years for court-martial.
    Adultery requires sexual intercourse.
    The statute of limitations would run beginning the first day after the last act of sexual intercourse.

    Answering your question does not create an attorney-client relationship. Every case is different and a resolution depends on a thorough review of applicable facts and law. No attorney can guarantee a particular outcome or result.


  4. If they get out before being reported, the military will take no action against them.

    NOT LEGAL ADVICE. FOR EDUCATION AND INFORMATION ONLY. DO NOT RELY ON ANY ADVICE YOU RECEIVE FROM ME OR ANY OTHER ATTORNEY IN THIS FORUM. Legal advice comes after a complete review of the facts and relevant documents and an expressed (written) agreement of representation that forms attorney-client confidentiality. Neither of these two events can occur in this forum. Mr. Rafter is licensed to practice in the Commonwealth of Virginia and the US Federal Courts in Virginia. His answers to any Avvo question are rooted in general legal principles--NOT your specific state laws. There is no implied or actual attorney-client relationship arising from this education exchange. You should speak with an attorney licensed in your state, to whom you have provided all the facts before you take steps that may impact your legal rights. Mr. Rafter is under no obligation to answer subsequent emails or phone calls related to this or any other matter.

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