Legal Separation In The Armed Forces: Treading Carefully
The Defense Finance and Accounting Services (DFAS) defines military legal separation as follows: "Separation occurs upon execution of separation orders by the appropriate authority under the Uniform Code of Military Justice" (UCMJ). The Army, Air Force, and Marine Corps each issue regulations specific to that service, which delineate the types and causes of separation, and the procedures for separation. The Navy separates its members in accordance with SECNAVINST 1910.4, Officer Commission Separation, Retired and Reserves.
In the case of a Social Security Number required for the application, DFAS says, "Your Dependent(s) will be awarded an additional DD 214 upon issuance of Separation Orders awarding them the status of a Dependent . "
Whether separation has been initiated or accomplished, be advised that the use of Active Duty for Training (ADT) affects eligibility for a subsequent enlistment.
For members of the National Guard and US Coast Guard, legal separation is defined in UCMJ article 1250. Military members with the Navy, Air Force, Army, or Marine Corps are not exempt from this jurisdiction. All branches of the military accept legal separation, which involves the promulgation of orders for discharge among other criteria met. Even if a couple becomes legally separated, they are usually considered still married for military benefits and obligations. These separation proceedings are often undertaken in conjunction with a state family law divorce proceeding.
Dating During Military Separation: Is it Permissible?
In general, you are free to date like you would if you were unmarried. Your obligation is not to pursue an adulterous relationship with another person, such as sexual relations with your wife’s best friend or your best friend’s spouse. Under federal law, you cannot engage in "cohabitation". Cohabitation is "living together as husband and wife". See United States v. Dougherty, 47 M.J. 206 (1997); see also United States v. Edwards, 55 M.J. 205 (2001). While each branch of the military has its own regulations regarding adultery, these regulations do not prohibit dating while legal separated. See Army Regulation 600-8-105 Regulation of the Army Task, Department of the Army -Department of Defense, Adultery, 31 October 2000; AFI 36-2909 Family Care Plans: Air Force Instruction, 1 December 2004; NAVPERS 16000D, Subj: The Navy records Management Program, 15 JAN 1999; COMDTINST M5370.8E, Subj: Coast Guard Military Discipline and Conduct; MCO 5370.8B Marine Corp Families, Sexual Conduct, 5 October 1992.
Given divorce is the legal dissolution of the marriage, you can appropriately decide to begin a dating relationship with someone other than your husband or wife. There are limits, however, on the type of dating relationships you can have. Depending on the regulation in your particular branch, an officer is prohibited from dating enlisted personnel or licenced professionals and those they supervise, while enlisted personnel are prohibited from dating officers and licenced professionals that they directly or indirectly supervise.
Increased Risks of Dating During Separation
Here are some potential consequences of dating while legally separated that military members should know about: The potential legal and career consequences of clearly defined "dating" include that after you file your Complaint/Person Away From Home Statement Under Article 39(a), UCMJ, it is possible that the military member will be served with a Request for Disposition of Case which requests married military members to affirmatively state (if they can) in writing that they have properly and lawfully separated from their spouse.
This scenario is not for the faint of heart as it potentially puts the military member’s duties and career in jeopardy. The legal implications are significant as well, and can include filing for divorce from bed and board, filing for divorce from bed and board on the ground of desertion, the issuance of a Divorce Decrees, and other favorable outcomes.
Likewise, the career implications are significant, although the military member may not think so. Simple misconduct may result in disciplinary action at a captain’s mast, article 15, non-judicial punishment, other administrative discipline (including but not limited to reduction on the employee’s pay grade), or even an honorable discharge from service to certain type of discharge (including but not limited to dishonorable discharge).
Consequences of Violating the Military Code of Ethics
The conduct of military members is governed by the Uniform Code of Military Justice (UCMJ), the Military Rules of Evidence, and the Manual for Courts Martial. Within these governing documents are rules concerning personal conduct, and the example it sets for other military personnel. The official Commissioned Corps Instruction on Personal Relationships (CCPM 2400.4D) provides rules for relationships within members of the Commissioned Corps of the U.S. Public Health Service and the Navy.
Regarding "dating" while legally separated, the UCMJ advises that certain relationships between an officer and another officer, enlisted member, requisite cadet or midshipman are "inconsistent with the nature, and seriously affects the appearence, of professional conduct expected of all Armed Forces members." Sections (c) (1) and (2) of Article 137, "Article 137, UCMJ—Advice to Enlisted Members , " states that any commissioned or warrant officer having billets/events involving personnel who may be affected by such relationships, should include this section of the UCMJ in information delivered to these members.
The rules extends to enlisted personnel, requiring that an enlisted member "may not by reason of prior association in a life state, marry, or maintain an intimate relationship with an officer or warrant officer, or a requisite cadet or midshipman whose unit of command is the same and whose branch of service is that of the officer or enlisted member." Conduct associated with the above or similar article, violates Article 92, "Failure to Obey Order or Regulation," UCMJ.
The Commander retains the power to sanction or take corrective actions for violations of the UCMJ, even upon the consent of subordinates. Commander does not have to initiate an administrative separation.
Legal Separation In The Military: Good Advice
It is always smart to retain and seek advice from a lawyer. A civilian attorney experienced with military law is the best option. There is an additional resource available to military families that may help. There are military lawyers also. You may hear the term JAG Officer is thrown around. The acronym JAG stands for Judge Advocate General and there is typically a legal office on most military installations. If dating while legally separated is something that you are considering take some time and make another appointment and try to find someone on the base that you can talk with about your options. The JAG is intended to help service members with legal issues relating to military administrative matters. Therefore, JAG officers who are immigration, criminal, tax, and family law specialists are often found at the legal office. It is well worth the time to talk to a JAG officer to determine if they can provide you with advice or guidance in a particular area.
Case Studies of Personal Experiences
Anecdotal evidence surrounding the issue of dating while legally separated is fairly limited. However, what little information is publicly available reveals a consistent theme: while the law prohibits the act of extramarital intercourse with someone other than your spouse, it is not a forbidden relationship once you are legally separated; in fact, this is a time when the law encourages moving on from the past so that you can create a new life for yourself. Even so, this doesn’t mean there are no legal complications and challenges, and that’s when it becomes necessary to call a military divorce lawyer.
For example, one Air Force E-5 described how he and his wife had become largely separated emotionally even before they sat him down and told him they were divorcing, so what happened next shouldn’t have come as any surprise to anyone. He reached out to a divorce attorney and started the legal process, which triggered a large range of emotions, complicated feelings and family obligations that the young couple didn’t know how to deal with. The divorce proceedings moved slowly, further complicating things, but he eventually met someone new and fell in love. Soon after they got married, which triggered the USFSPA law, a law that allows a spouse to secure up to 50% of the service member’s retired pay if they were married for ten years or more while the service member was on active duty . This law meant that his ex-wife was entitled to half of his monthly retirement check, which would follow him wherever he went in his life. It would follow him from the Air Force into the private sector and continue in perpetuity, despite recognition of the second marriage.
In another case, a Navy vet and his ex-wife tried to unravel everything between them while they waited for their divorce proceeding to finalize. She had left him and found someone new, and he did the same, dating different people while they waited for the divorce. As a part of those court proceedings, his ex claimed that he had transferred most of his assets and money over to his new girlfriend, in an effort to deprive her of her share. That was an emotional issue, considering both parties were with someone new, but the court ruled in his favor.
There are many more stories like this in military divorce, and dig into the articles and news stories and you’ll see a consistent pattern. The individual in the wrong usually doesn’t end up being the one to pay for the complications on the other side. That’s true with splitting property and assets, and also true with alimony or retirement checks. While the law prohibits cheating – and you can be held liable for it in court, even if you’re the victim in the family separation/guideline – it’s important to recognize that the law is not set up to punish you financially for that person’s actions.