Almost every week in our office, we receive the question, “If I am legally separated and start dating, can I get in trouble in the military for adultery?" Since the formal legal process of divorce can last months (or sometimes years), this question raises an important concern for anyone in uniform who is pending a divorce. However, the answer to this straightforward question can be anything but simple.
The first step in answering this question requires an understanding of the military’s prohibition on adultery. Article 134 of the Uniform Code of Military Justice makes criminal the act of adultery when certain legal criteria, known as “elements," have all been met. There are three distinct elements to the crime of adultery under the UCMJ: first, a Soldier must have had sexual intercourse with someone; second, the Soldier or their sexual partner was married to someone else at the time; and third, that under the circumstances, the conduct of the Soldier was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
The first two elements of adultery under the UCMJ are fairly straightforward and shouldn’t require further explanation. The third and final element is where our simple question starts to become complicated. The “explanation" portion of Article 134 identifies several considerations military commanders should consider in determining whether an act of sexual intercourse could satisfy the third and final element of adultery under the UCMJ, including whether the Soldier or their sexual partner was “legally separated."
When people refer to being “legally separated," they generally mean one of two distinct legal situations – either they have signed a formal separation agreement with their spouse or that a state court has issued an order of separation. A formal separation agreement is essentially a written contract between a husband and wife resolving the significant legal issues between them involving property, debt, support, child custody, etc. Separation agreements are typically drafted by an attorney, such as those available to Soldiers and their family members at the Office of the Staff Judge Advocate (commonly referred to as “JAG"). Such agreements often become part of the final divorce granted by a state court and the act of signing such a document usually signifies a major step toward a final divorce.
Returning to our original question, we must always be mindful that while being “legally separated" is an important consideration in deciding whether a sexual relationship violates Article 134 of the UCMJ, it is by no means the end of the inquiry. The “explanation" portion of Article 134 identifies additional considerations for commanders such as the rank and position of the parties involved, the impact on the military unit, the potential misuse of government time or resources to facilitate the prohibited conduct, as well as whether the adulterous act was accompanied by other violations of the UCMJ.
Due to the inherently ambiguous nature of these various considerations, there will always be the potential for criminal liability under the UCMJ or exposure to adverse administrative action when a Soldier undertakes a new sexual relationship while still married, regardless of whether they are “legally separated." The only 100% safe course of action under the UCMJ is to wait until a state court has granted you a final decree of divorce, thereby making you “single" again.
While the above information provides a general framework for examining our original question, every situation is unique. If you have questions about your particular circumstance, please contact your local military legal assistance office or a civilian attorney familiar with military law to receive confidential legal advice specific to your situation.
Employment / Labor Attorney