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Adultery and a Massachusetts Military Divorce

"If I am in the process of obtaining a Massachusetts divorce can I get in  trouble in the military for adultery? This is a frequently asked question and 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 (UCMJ) 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."

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 percent 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.

Should you be in the midst of a military divorce or contemplating divorce, contact the Law Offices of Renee Lazar either through email or telephone 978-844-4095 to schedule a FREE one hour no obligation consultation.

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