Dating during a legal separation

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(July 13, 2011) -- Almost every week at the Legal Assistance Divorce & Separation Briefing, we receive the question, "If I am legally separated and start dating, can I get in trouble in the military for adultery?

" Since the formal legal process of divorce can last months (or sometimes years), this question raises an important concern for anyone in uniform who is pending a divorce.

A couple doesn’t need an order of separate maintenance and support in order to live separately prior to a divorce.

However, a maintenance and support order can help couples protect themselves financially and resolve child custody and visitation issues during the separation period.

Article 134 of the Uniform Code of Military Justice 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 court order for separate maintenance and support will define the rights and responsibilities of the spouses while living apart and is enforceable through the contempt power of the court.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.With the use of modern technology, people can date via telephone or computer or meet in person.This term may also refer to two or more people who have already decided they share romantic or sexual feelings toward each other.

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