Legal Separation In The Military Divorce Process
Can Military Spouses Legally Date During Separation?
For military families undergoing separation on the road to divorce, the murky question often comes up – can I start dating other people before the marriage is formally dissolved? The answer is complicated. While legally separated, service members remain married even if they live apart. This means romantic relationships with new partners occupy an ambiguous space under military law.
Dating while separated risks accusations of adultery and related penalties under the Uniform Code of Military Justice. However, some forms of dating might be permissible. This article examines the complex regulations around new relationships during military separation and what activities cross legal lines for still-married spouses. We’ll explore how dating impacts your military career, separation terms, and path to divorce so you can make wise choices during this transitional relationship stage as a separating service member.
Understanding Service Member the Rules and Restrictions
For civilian couples going through a split, “legal separation” is typically just that awkward in-between time after deciding to divorce but before the marriage is officially dissolved. However, legal separation in the military has a much more defined meaning and process – along with strict rules about dating and intimacy during the separation period.
This comprehensive guide covers everything legally separated military couples need to know about pursuing new relationships prior to finalizing their divorce. By understanding the laws around separation versus divorce, when dating crosses legal lines, and how to protect your interests, you can avoid jeopardizing your separation agreement and your military career.
The Difference Between Military and Civilian Legal Separation
Civilian legal separations are generally informal, with few set requirements for couples who live apart while preparing to divorce. However, under the Uniform Code of Military Justice (UCMJ), legal separations in the military is an official status with mandated procedures.
To legally separate as service members, military spouses must:
- Consult formally with the base legal assistance office about separation requirements. This typically involves at least one consultation with a Judge Advocate General (JAG) attorney.
- Sign a written separation agreement spelling out the binding terms of your separation. This covers critical topics like property and asset division, spousal support, child custody and support arrangements, and more.
- Physically live apart in separate dwellings for an agreed-upon period of time before seeking a divorce. This separation period may range from several months to a number of years depending on your circumstances.
During the separation, you remain legally married even though you live apart and functionally separate your lives. This means you cannot remarry or even file taxes as “single” until the final divorce decree goes through.
Related Terms: family members, military spouse, military service member, former spouse protection act, servicemembers civil relief act, written agreement, military housing, armed forces
New Relationships and Dating During Separation
This brings up the murky question of new relationships during the separation period. Since you are still legally married until your divorce finalizes, having an intimate relationship or sexual relations with someone else is considered adultery under the UCMJ.
Adultery remains a punishable offense under military law and can be prosecuted via court-martial. This means separated service members must tread very carefully when pursuing new dating relationships prior to officially divorcing.
Does this mean separated military spouses cannot date or form new romantic attachments at all while waiting for their divorce? Not necessarily. Non-sexual romantic relationships are typically permissible, though occasional adultery prosecutions do still occur for particularly acrimonious cases.
However, having sexual contact or any “physical intimacy” with a new dating partner before your divorce is finalized is extremely high risk legally. Unless you want to jeopardize your separation terms and even your military career, abstaining from sexual relations until you are officially single again is the wise path. Always discuss any new romantic relationships with your separation attorney to understand your legal rights and risks.
Impact of Separation on Benefits, Property, and Allowances
Many military benefits, rights, and allowances are largely unaffected by legal separation alone. These include:
- Health, dental, and life insurance benefits through TRICARE, which extends coverage to separated spouses until divorce
- Commissary and exchange privileges on military bases, typically valid until the final divorce decree
- Eligibility for military family housing, assuming separated dependents are properly registered
However, there are some exceptions in certain situations:
- If the civilian spouse obtains a court order for spousal/child support, the service member may have to forfeit part of their military pay to comply with the order.
- Specific property and assets, like houses or vehicles, may be divided or transferred in the separation agreement itself.
- Retirement pay, pensions, and the Survivor Benefit Plan cannot be divided until final divorce proceedings.
Handling Child Custody and Support During Separation
For couples with children, custody and child support are addressed either in the signed separation agreement, or through temporary civilian court orders if you cannot reach an agreement. Some key factors include:
- Legal custody (decision-making authority) and physical custody schedules are laid out in the agreements. Physical custody may be sole or joint.
- The non-custodial parent is still responsible for paying child support until the military divorce occurs.
- Custody and child support orders made during separation can be re-negotiated at the time of final divorce.
Finalizing Divorce After the Separation Period
Once the required separation time dictated in your agreement has elapsed, either spouse can file the petition for formal divorce with the civil court. This filing sets in motion the legal proceedings to permanently dissolve the marriage.
During divorce proceedings, all outstanding matters such as asset distribution, alimony, child custody, and child support will be revisited and finalized by the court through the entry of a divorce decree. Only once a judge signs your final divorce decree are you legally permitted to remarry or consider yourself “single” again.
Your separation attorney can counsel you on whether pursuing divorce is advisable after the separation period based on your goals and situation. Some military members choose to delay final divorce in hopes of reconciliation.
Consulting an Attorney About Separation vs. Divorce
Navigating whether to legally separate or proceed directly to divorce is a highly personal decision requiring expert guidance. Here are some key reasons to consult a military divorce attorney:
- They can advise whether separation or direct divorce better serves your interests and goals. Separation allows gradual unwinding of the marriage but delays finality.
- They will inform you on laws and restrictions around new relationships during separation to avoid UCMJ violations. Adultery charges jeopardize your military career.
- They can negotiate separation agreements protecting your rights to property division, spousal/child support, military benefits, and custody arrangements.
- They can represent you in filing separation paperwork with the military and in any subsequent divorce proceedings.
While challenging emotionally, approaching legal separation strategically with trusted counsel advising you allows military families to unwind their marriage the best way possible for their situation.
Common Legal Separation Questions and Examples
Frequently Asked Questions
To gain full clarity on military separations, consider common legal questions that arise:
Can ex-spouses legally date if they are legally separated but not divorced?
Yes, in most cases, but having sexual contact or relations. But with new partners prior to the divorce being finalized is legally risky and ill-advised.
Do both spouses have to mutually agree and consent to legal separation?
No, under the UCMJ one spouse can independently pursue legal separation even without the consent or agreement of the other spouse.
Can legally separated military couples continue living together in the same residence?
No, to satisfy the separation requirements you must establish completely separate households and living arrangements.
Does obtaining a legal separation simplify or pave the way for an easier divorce down the road?
It can. Separation allows time to gradually divide assets, adapt to changes in lifestyle, establish custody, and emotionally unwind the marriage which can simplify divorce.
How could civil dating and intimacy impact the military career of a legally separated service member?
Adultery charges under the UCMJ can severely undermine or even end a military career. Avoid sexual intimacy until legally divorced.
Real-Life Separation Scenarios
Understanding how separation rules play out in actual military marriages can provide important context:
Situation A: Two Army soldiers married 8 years with a 5-year-old daughter are pursuing legal separation. Per their signed agreement, they share joint legal custody of their daughter but she lives primarily with the mother. The father cannot have overnight visits with any romantic partners when his daughter is scheduled to stay with him.
Situation B: After 15 years of marriage, a Navy officer initiates separation from his spouse but she remains in their military family housing while he temporarily moves to the barracks on base. She maintains her military ID card and continues accessing healthcare, shopping privileges, and other benefits on base until their divorce.
Situation C: An Air Force sergeant has been legally separated from his wife for over 2 years after 10 years of marriage. His new girlfriend is pressuring him to finalize the divorce so they can get married, but he hopes to delay further to see if he and his wife might still repair the marriage.
Conclusion
While emotionally difficult, approaching legal separation strategically with trusted legal counsel allows military families to unwind their marriages in a way that protects their rights and benefits. Still, intimacies with new partners during separation risk UCMJ action. Tread carefully when dating after separation, and understand that once your divorce is finalized, you can fully embark on new relationships post-military marriage.
Related Terms: Military spouse entitled, Service member’s spouse
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