How Legal Separation Differs for Military Spouses

Couples contemplating divorce often separate for a time before or while moving forward with dissolving the marriage. Spouses may establish separate residences and become separated in fact, if not in law. They may draft and sign a separation agreement outlining how property will be used or divided, which person will pay specific debts and how child support and custody issues will be handled.

Some states allow a married couple to obtain a Decree of Legal Separation rather than a Decree of Divorce. A variety of good reasons exist for why spouses may prefer a legal separation rather than a divorce.

One spouse's health insurance may continue to cover the other spouse during a legal separation, but coverage usually ends after divorce. Spouses may object to divorce for religious purposes. Spouses may choose to separate but remain married so that one spouse can eventually qualify for higher government benefits such as Social Security based on the length of the marriage.

The process in states that grant legal separations is typically similar to that for getting a divorce. Property and debts are distributed, child custody and support issues are decided and spousal support may be ordered. However, the spouses remain legally married. Should one spouse want to convert the legal separation to a divorce, there is usually a fairly simple process to do so that leaves provisions of the legal separation in place, except that the marriage is thereafter considered as legally dissolved.

Whether spouses have a de facto or legal separation, the common bottom line for both civilian and military spouses is that they remain married, and neither can remarry until a final divorce decree is issued by a court. It is common for separated spouses to date other people and acquire a new romantic partner. Indeed, a new relationship may have started before separation and served as the cause for separation. However, there are significant differences in what extra-marital conduct is considered legal or permissible for service members compared to civilians.

For civilian spouses, personal conduct while a divorce is pending and the ultimate provisions of a divorce decree are determined by laws of the state in which the divorce is filed. For military spouses, in addition to state laws, a variety of federal laws and codes impact personal conduct, child custody, support and property division.

The Uniform Code of Military Justice (UCMJ), created in 1951, is a set of rules and regulations that establish criminal offenses for service members and outline procedures for adjudicating such offenses. Until 2019, adultery was defined as sexual intercourse between a man and woman and could be punished by a dishonorable discharge, loss of pay and allowances and confinement for up to one year.

Married service members could be prosecuted if they engaged in vaginal intercourse with someone other than a spouse while single service members faced penalties for having intercourse with a married person.

Service members who considered themselves legally separated from a spouse but did not have a court order of legal separation could also be prosecuted. Even if the state in which the service member was located did not have a law prohibiting adultery, prosecution under the UCMJ could still occur.

In 2019, the crime of adultery was replaced in the UCMJ with a broader gender-neutral offense of "extra-marital sexual conduct." The expanded definition now includes same-sex relationships and genital, oral or anal sexual intercourse. The potential penalties remain the same. The change was intended to prevent and criminalize a broader range of sexual conduct that negatively impacted the military environment. Under General Article 134 of the UCMJ, three elements must be proven to support a conviction.

An accused person must have engaged in prohibited sexual conduct. The accused must have known at the time that the accused or the other person was married to someone else. The government must also prove that the accused's conduct was either to the prejudice of good order and discipline in the armed forces or the conduct was of a nature to bring discredit upon the armed forces.

The 2019 changes to the law also created an affirmative defense of legal separation. To use the defense, both parties must have been either unmarried or legally separated when the sexual conduct occurred. Even if the service member has proper documentation of legal separation, this affirmative defense will not apply if the other person involved is still married.

It is not enough for a married person to informally consider himself legally separated no matter the length of the separation, nor is it sufficient for a married service member to have a written separation agreement signed by a spouse. The affirmative defense is only applicable if a married person has a formal court order of legal separation signed by a judge.

An accused service member can also raise the defense of mistake. If the service member can produce evidence that he had an honest and reasonable belief that the other person was unmarried or legally separated, the burden shifts to the government to prove otherwise.

Before initiating a prosecution for extra-marital sexual conduct, the government is to consider a variety of factors. These include the marital status, military rank and position of the parties involved, whether the conduct was recent or remote in time, the impact of the conduct on the military member's ability to perform duties and the misuse of government time and resources to facilitate the conduct.

The government is also to consider if the conduct continued after orders to desist, the flagrancy and notoriety of the conduct and whether divorce proceedings had begun to dissolve the marriage of the accused or the co-actor. Whether there has been a detrimental effect on unit or organization morale, teamwork or efficiency is also to be examined.

Anyone considering divorce proceedings is often advised to avoid getting involved in a new romantic relationship until a divorce is final. For civilian spouses, the existence and conduct of new relationships can impact decisions regarding child custody and visitation issues. For military members, the potential consequences of pursuing an extra-marital relationship are even higher. The most responsible course of action is simply to avoid any extra-marital sexual relationships until a court has entered final orders granting a divorce or legal separation. If you have any questions concerning a military divorce, call the Law the Law Offices of Peter Van Aulen at 201-845-7400 for a free initial consultation.