How is a Military Divorce Affected by Adultery?

Facing separation or divorce can be stressful and overwhelming for all involved, especially if it involves allegations of adultery. Military members are held to a higher standard of conduct than civilians and can face legal repercussions for committing adultery, even while divorcing their spouse. However, recently the Uniform Code of Military Justice (UCMJ) has changed some of its guidelines surrounding adultery cases. Learn about the military’s policies regarding adultery, how they have changed, and how an adultery charge may impact your divorce. If you have questions or are dealing with adultery during a military divorce, contact our Virginia family law attorneys at Melone Hatley, P.C. for legal advice and guidance.

Can a Military Member Be Charged With Adultery in Virginia?

Claims of adultery can quickly turn divorce proceedings contentious and emotionally charged. If you are a U.S. military member, it can also lead to charges under the Uniform Code of Military Justice (UCMJ) Article 134. Adultery charges not only apply to a married service member but also to those who are single and have an affair with a married individual. As such, you must defend yourself in the military justice system as you face court-martial and potential punishment.

Can Military Spouses Be Charged With Adultery in Virginia?

If you are the spouse of a service member and have committed adultery, you may be concerned that you, too, can be charged. However, under the UCMJ, military spouses cannot be charged with adultery. While this is good news to you, accusations of adultery can still affect your divorce proceedings in Virginia state court.

What Does the UCMJ Article 134 Say About Adultery?

The UCMJ is the definitive set of criminal offenses, laws, and legal procedures that govern the military justice system. It serves as the legal framework under which all military members are governed, and it applies to:

• All active-duty military members
• Activated National Guard and Reserve members
• Military academy students
• Certain civilians who serve as military support during wartime

Article 134 of the UCMJ makes the act of adultery criminal when the following three elements have been met.

1. The military member engaged in sexual intercourse with an individual other than their spouse.
2. Either the military member or the sexual partner was married to another at the time.
3. The conduct of the military member degrades the established good order and discipline at the heart of a military unit and throws discredit on the armed forces.

It is this third element that can lead to ambiguous decisions, with the following factors playing a role.

• Your rank
• If the participating partner is also a military member
• If you are of higher rank than the adultery partner
• If you misused government time or resources conducting the affair
• Any additional UCMJ violations
• Your infraction record
• Whether you committed adultery one time or repeatedly
• If there were witnesses
• Other contributing factors (e.g., alcohol)

Is Same-Sex Sexual Conduct Considered Adultery?

Changes to the Military Justice Act in 2016 led to the rewording of what defines adultery within the military. While adultery used to only apply to heterosexual vaginal intercourse, today, the new definition of adultery applies to same-sex sexual conduct as well.

In addition, the term “adultery” is now replaced with extramarital sexual conduct and is gender-neutral. In other words, sexual orientation is not a factor in evaluating a charge of extramarital sexual conduct.

If I Am Legally Separated and Begin Dating, Can I Be Charged With Adultery?

Yes, you can still be charged with adultery if you are a military member who starts dating while legally separated. However, your legal separation can serve as an affirmative defense and be an impactful factor.

The standards involving adultery are beginning to change today. According to the 2019 Manual For Courts-Martial, legal separation is now a considering factor in deciding if adultery deserves prosecution.

While you will still meet the first two elements of a violation under Article 134, dating while legally separated may not be considered in violation of the third element of Article 134. Whether your legally separated marital status is considered at trial will be at the discretion of your commanding officer.

Still, there is no guarantee that a legal separation can protect you. If accused, you may still have to defend yourself and your military career.

What are the Consequences of Being Found Guilty of Adultery in the Military?

Being found guilty of the crime of adultery in the military will bring consequences you must be aware of ahead of time. These consequences may include punishments that can disrupt or end your military career.

Maximum punishment

Under military law, if you get the maximum punishment available, you will receive:

• A dishonorable discharge
• Forfeiture of pay and allowances
• Confinement for up to a year

Potential punishment

In the majority of cases, the maximum punishment is not given, and instead, military personnel may receive:

• Administrative disciplinary action (oral or written letter of reprimand)
• Administrative separation (a military firing or involuntary separation, removing you from the service through an administrative process)
• Loss of military rank
• Punitive discharge
• Prosecution
• Loss of retirement

How Does Adultery Impact Military Divorce in Virginia?

• Service members are expected to uphold a certain standard while in the line of duty. As such, allegations such as adultery can have a tremendous impact on your career trajectory. In these instances, our attorneys try to settle out of court before any filings.
  Yet, sometimes the other spouse will file, claiming adultery before we can even enter negotiations. When this happens, defensive approaches in an attempt to discredit the claim of adultery might include:
• Raising a reasonable doubt as to the proper pleading of the complaint
• Pushing the idea of adultery to trial to try and discredit the claim
• Coming to an agreement before the trial and agreeing to amend the complaint

In military divorce cases where the non-member spouse is committing adultery, it can be difficult for the military servicemember. First, each military branch has requirements for how much the service member is supposed to pay a spouse for maintenance during the separation. These amounts are frequently higher than what a court would order. You and your attorney will need to move quickly to file the complaint for divorce and set a hearing for temporary support in order to avoid the higher mandated payments.
Regarding what a military spouse is entitled to, the following may be affected when adultery is involved.

Dividing Assets

The judge can take adultery into consideration when dividing the assets of the marriage This may result in the spouse who did not commit adultery receiving a larger share of assets to the cheated-on spouse.

Spousal Support

If you commit adultery and would be eligible for spousal support this will have a major impact on your rights. While proving adultery may be difficult, there are many instances when the offending spouse will be denied spousal support.

Can Adultery Impact My Custody Battle in Virginia?

Adultery can impact on child custody and child support decisions in most states, including Virginia. At the center of all decisions regarding custody is the best interest of the child standard, meant to meet the child’s needs in the best possible way. A guardian ad litem may be appointed for your child to ensure this occurs.

Unadulterated Legal Support Through Your Divorce

Filing for a military divorce is complicated enough without the allegation of adultery interfering not only with the marriage but with your military status. At the Melone Hatley, P.C. law firm, we can provide you with unadulterated legal support through your divorce, working to protect all your rights to achieve a fair outcome and truly being your partner through this process. To find out how our Virginia military divorce lawyers can help you, contact our office at 800-479-8124 or through our online contact form to schedule an initial appointment. We proudly serve both Virginia and North Carolina.