Adultery in the Military: What You Need to Know

What You Need to Know About Adultery a Military Marriage

The military has many different rules and regulations that differ from the laws that apply to everyday citizens. Here is everything you need to know about adultery in the military.

While adultery is not illegal in the United States, it is against the Uniform Code of Military Justice (UCMJ) and can be punishable by fines and jail time if processed and proven.

Is It Considered Adultery to Date While Legally Separated in the Military?

Since the divorce process can take months or even years, many military members wonder if dating during legal separation is considered adultery within the military. In truth, it is quite complicated, as there is always the potential for criminal liability in the Uniform Code of Military Justice. The only way an individual will 100% not be held liable for adultery is if they wait until the divorce has been finalized to start dating. This rule is most likely to be enforced when dealing with adultery within the chain of command or when the legally separated couple are both members of the military.

While there is a Legal Separation Defense that can be used in military courts on occasion, it only applies if BOTH people involved in the affair are legally separated or unmarried.

Adultery and Article 134 of the Uniform Code of Military Justice

Article 134 of the Uniform Code of Military Justice outlines what makes adultery a crime with 3 very specific criteria. These criteria are:

That the accused had intercourse with a certain person,
That at the time of said intercourse, the accused was married to someone else, AND
That under the circumstances the accused’s conduct 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

Adultery can only be considered a crime in the military if all three of these criteria are met.

For years, the third criterion was often applied loosely – any servicemember guilty of adultery would be tried and punished if their actions were discovered. However, recent rulings have begun to change the norm, making it harder for the military to prosecute and punish people for adultery. This specifically changed who was tried in cases of legal separation and dissolution.

Circumstances are also extremely important when deciding whether or not a military member will be tried and punished for adultery. Was it a one-time incident that is likely to not happen again, or was it a recurring event? Were any aggravating factors, such as alcohol, involved in the situation that could complicate the issue? Was there actually a breakdown of good order and discipline? The answers to these kinds of questions are considered when deciding to try a servicemember for adultery.

Punishment for Adultery in a Military Marriage

According to the Uniform Code of Military Justice, the maximum penalty for adultery is:

dishonorable discharge
confinement for up to a year
forfeiture of all payments and allowances

Yet most people who are found guilty of adultery are not likely to get the maximum punishment. Instead, they may be offered Administrative Disciplinary Action, Administrative Separation, or Court-Martial.

How often are adulterers in the military prosecuted?

There are many factors that can determine the likelihood of a servicemember being prosecuted for adultery. Some of these factors include rank, grade, position, degree of public visibility, and elements of proof. Three elements of proof must be presented in order for an adulterer to be prosecuted. However, just because an individual is not prosecuted does not mean that they will not face any consequences, as the commanding officer still has discretion.

Contact Us

If you or a loved one would like to know more about adultery in a military marriage, contact us. We’ll get you in touch with the most qualified attorney for your unique legal matter. If adultery was involved in your military marriage, we can get you in touch with one of our California Divorce Attorneys.