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What constitutes adultery in the eyes of the military?

On Behalf of | Jun 25, 2020 | Military Divorce |

If you are an active member of the United States military, your conduct is subject to different standards than those that the average citizen has to meet. Military obligations can influence your lifestyle and even put you at risk of punishment for behavior that wouldn’t be illegal for civilians.

In the event that you do get divorced, military service and the unique expectations for servicemembers will affect even that process. One of the many standards that military members must adhere to that doesn’t necessarily apply to the general public is a ban on adultery.

Adultery allegations in a divorce could have profound implications for someone still serving in the military. Knowing what constitutes adultery can help you better strategize for a pending military divorce, especially if infidelity played a role at the end of your marriage.

The military has updated its definition of adultery

For a long time, the military definition of adultery involved only standard procreative sexual intercourse between a man and a woman. Additionally, the risk of adultery charges extended through the date of divorce, even if the service member had already separated from their spouse.

Notably, these rules have recently changed, bringing the military definition of adultery under the Uniform Code of Military Justice into the 21st century. First of all, gender requirements are gone. Same-sex sexual encounters can now constitute adultery, just as heterosexual acts can. Additionally, instead of only traditional intercourse constituting adultery, the military will now also consider other acts of sexual contact when it reviews allegations of adultery. Lastly, military members who have formally separated from their spouse but not divorced are not subject to adultery rules.

Elements of proving adultery

Under Article 134 of the UCMJ, military courts consider the following elements when considering whether adultery took place:

  1. That the accused servicemember wrongfully engaged in sexual activities with an individual;
  2. That the accused servicemember was married to someone else at the time; and
  3. That the conduct of the accused servicemember was “to the prejudice of good order and discipline” in the military.

If adultery could play a role in your military divorce, the potential exists for the military servicemember who engaged in infidelity to face court-martial, along with divorce and all the changes it may bring to their life. Seeking the help of an attorney experienced in military divorce can be beneficial to understand the process to come, as well as any potential penalties.