Legal Separation for Military Spouses

Separation Versus Legal Separation

People often confuse being separated with a legal separation. This article explains the differences between these concepts and provides a basic overview of military divorce.

Separation

Sometimes, couples (both military and civilian) that are going through a rough patch in their marriage choose to separate before pursuing a divorce. They may want time to see how they do living apart or to seek counseling to save their marriage. During a separation, most couples will live apart. If they can't afford to live apart, they may act as though they are separated while living in the same home - as roommates without cohabitation (sexual relations).

When it becomes clear that the separation is going to last for some time or that the next likely step is divorce, a couple may enter into a "separation agreement," which is a written agreement that spells out how the couple wants to handle certain issues during their separation, including child custody and support, alimony payments (if any), and the division of property.

Being separated, or entering into a separation agreement, does not mean that a couple is no longer married, is "legally separated," or "divorced." It just means the couple is currently separated. Similarly, if they have a "separation agreement," it just shows that they are currently separated and have made some agreements to help spell out rights and responsibilities during this time period.

If the couple decides to legally separate or divorce later, they may be able to incorporate their separation agreement into a judgment of legal separation or divorce.

Legal separation

A "legal separation" is a court order, which declares that a couple is legally and officially separated. Couples that choose legal separation typically do so for religious reasons. For example, some couples may belong to a religion that prohibits divorce. Others may want to keep health insurance in effect for their spouse, which would normally terminate after a divorce. If you're considering a legal separation for health insurance reasons, be sure that a legal separation won't count as a disqualifying event.

If you are legally separated, you are still technically married and can't remarry. You can only remarry if you obtain a divorce. However, the process for legal separation is almost identical to a divorce; you must obtain a court judgment regarding all of the issued you would have to decide in a divorce: alimony, child support and custody and property division.

It's important to note that in all of the above scenarios - a trial separation, a separation with a separation agreement, a legal separation, and even during a divorce proceeding - a couple is still legally married; the only way to end a marriage is to obtain a final divorce decree.

Can Military Spouses Date Once they are Separated or Legally Separated?

One key difference between civilian separations and military separations is that in most states, civilian spouses who are separated or legally separated can date someone other than their spouse without violating any laws. In other words, it's not a crime in most states to date someone else if you're separated from your spouse.

But, if a military spouse dates someone other than their spouse before being legally divorced, they risk being charged with the crime of adultery. Article 134 of the Uniform Code of Military Justice (UCMJ) makes the act of adultery a crime if the following legal criteria are met:

• the service member had sexual intercourse with someone other than their spouse
• the service member or their sexual partner was married to someone else at the time of the act of intercourse, and
• under the circumstances, the conduct of the service member was contrary to good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

If you are in the military and you date someone other than your spouse while your divorce is pending or even after you are "legally separated," you are risking criminal charges. If you get caught, you may try to argue that you were no longer "married" because you and your spouse were living separate and apart, or were legally separated, but that argument is not necessarily going to succeed. As stated above, the only way to end your marriage is through divorce. So, until you have an order terminating your marital status, you are still legally "married" and not really free to date anyone else under military law.

The only sure way to avoid a criminal charge of adultery under the UCMJ is to wait until a state court grants you a final divorce decree, thereby making you "single" again.

How Military and Civilian Divorce and Separation Differ

Military divorce and separation issues are fairly complex because they may be governed by a combination of military codes, state divorce laws and Federal statutes. For example, military laws and Federal statutes will determine the division and/or distribution of military pay, military benefits (retirement and health), and certain types of property.

In contrast, the laws of the state in which the divorce proceeding is filed (usually the state where one of the spouses has resided for the requisite period of time) will govern how the divorce proceeds and how most of the divorce-related issues are decided, including child custody and visitation, child support, alimony and the division of certain property and debts.

(See Differences Between Military and Civilian Divorce to learn more about it).

Why You Need a Civilian Lawyer

Although many of the laws applied in a military divorce will be the same as those in a civilian divorce, there are still some major differences, so you should hire a civilian lawyer to represent you in your divorce. Make sure your civilian divorce attorney has extensive experience with military-related family law, including a strong understanding of the Servicemembers Civil Relief Act (SSCRA) and the Uniform Services Former Spouse Protection Act (USFSPA).

Although military personnel and their family members have access to free legal services provided by the Judge's Advocate General's Corps (military officers who are also lawyers), military lawyers are not usually familiar with state divorce laws. Every state has its own unique set of divorce laws that govern divorce actions filed therein, so consulting with a JAG attorney will be of little use to a military member going through a divorce.

Civilian attorneys who specialize in family law know their state's laws. Therefore, it is essential to hire a civilian divorce attorney who is an expert in local family law matters.