The military has all sorts of policies which can make separation, divorce, and child custody especially confusing as a military spouse. On top of the military policies, too, there are many laws at the state level that will impact how your separation, divorce, and/or custody case will proceed, some of which supersede the military policies. Probably, if you’re a military spouse, you aren’t even from Virginia originally and, even if you happen to be, that doesn’t mean that you have up-to-date information about how the divorce process usually works.
It can make things really confusing. That’s okay – that’s why I’m here.
One of the most common reasons that a wife might consider contacting her husband’s military command is in the event that he has committed adultery. It’s usually either this or, in a more rare situation (but it still happens), that he’s not paying support according to MILPERSMAN. We’ll talk about both today.
Should I contact his command if he has committed adultery?
Technically, the military has a no-adultery policy. It’s specifically against military personnel rules. Military service members are not supposed to commit adultery. (Of course, non-military civilians are not supposed to commit adultery either; Virginia is sort of a standout nationwide because here, unlike in many other places, adultery is still a criminal offense!)
There are also policies against fraternization. In other words, he should not be having sex with other military servicemembers, but particularly with lower-level military servicemembers.
Does it happen? Of course. Affairs happen in every branch of service and in many civilian marriages all across the country. Deployments and complicated family life arrangements often associated with the military mean that these sorts of things can come up more often, but it’s certainly not a phenomenon that is unique to military service members. Adultery happens and, if I’m honest, it happens sort of a lot.
As far as fault-based grounds for divorce go, adultery is one of the most common ones we see.
But don’t be misled: that doesn’t mean that he will certainly be punished for it.
If you know – or suspect – that your husband has committed adultery, do not call his command.
Since adultery is technically against military policy, it is theoretically possible that he could be demoted, not promoted, or even kicked out of the military for this behavior, depending on the details and the severity of the infraction(s) involved.
It’s probably unlikely; in many cases, we find that the military protects its own, which leaves the dependent spouse enraged. (Why have policies you won’t enforce?!)
What would be even worse for you, though, is if the military DID act on your accusation. If he is kicked out, demoted, or just deemed not promotable because of his behavior, YOU miss out.
You miss out because he doesn’t have the money – or, at least he has considerably less money than he would otherwise – to pay child support and/or spousal support. He’ll earn less (or even lose entirely) his military retirement, too, depending on exactly what happens; as a military spouse, you have an entitlement to 50% of the retirement that was earned during the course of your marriage, so that’s your money, too.
Don’t call his command if you suspect adultery; call an attorney first.
Talk to an attorney – not a JAG attorney, but a licensed Virginia attorney who can actually represent you in a litigated divorce action in courts here, if it comes to it – about what has happened and your options. Don’t jump to any conclusions or make any hasty decisions that you may come to regret. Whatever you choose to do, you should do so in full knowledge of the advantages and disadvantages.
One of the biggest mistakes we see people make is that they react quickly when they’re emotional. They’re angry, hurt, or embarrassed, and they want to make their spouse feel it. In some cases, they want to punish them. They certainly want to see that there are consequences for these actions, and not that he can go on and live a different happily ever after with some new woman after an affair.
But it’s important to tread carefully and consider your alternatives. It’d be a poor resolution if you ended up with no (or less) support and/or retirement because you reported his behavior to his command. It’s a better situation, even if he doesn’t get fired or face consequences through the military, if you get all of the military-related benefits you are entitled to receive, including child and/or spousal support, a share of the retirement (which can be incredibly valuable), and other benefits, including potentially 20/20/20 or 20/20/15 status, a portion of the TSP, SGLI, and more.
If you DO call his command, consider the possibility of negative consequences.
It’s entirely possible that calling his command will result in nothing at all being done. But, if something IS done, you will pay the cost.
Not only that, but – when it comes time to divorce – the Virginia judge who hears your case will not be impressed that you are pleading poverty when it was your call to his command that resulted in the professional consequences he’s experiencing. I’ve seen it happen before!
I know – you were wronged. But that doesn’t mean that the judge won’t think that you have some responsibility yourself if you were the one who reported to the command that this had happened and this directly led to his discharge, demotion, or lesser level of career achievement. This will not attract you positive, supportive, empathetic attention – quite the opposite, actually.
Adultery as grounds for fault based divorce in Virginia
Talk to an attorney, too, about your options as it relates to using adultery as your grounds for divorce. (It may be that just the mere mention of this is enough to make him suddenly cooperative, since he likely won’t want this information to find its way back to his command.)
Virginia is one of the states left that still allows for fault based divorce and, because we’re an equitable distribution state, too, there is the possibility that his ‘negative non-monetary contribution’ to the marriage could result in your getting more of the marital assets because of it. It’s probably not likely to happen, but it’s possible – and certainly a better use of your time, if you’re determined to make a stink about his affair.
I always tell clients that the question should be whether the juice is worth the squeeze, though. Loosely translated, I mean – will you get more money because of his affair, or is it possible that you’ll walk away with less? Because adultery is a criminal offense in Virginia (it’s a level IV misdemeanor), adultery requires the highest burden of proof of any of the fault-based grounds. You have to prove, with clear and convincing evidence, that the affair probably occurred.
You also need a corroborating witness. (No, his admission is not enough.) So, you may have to hire a private investigator ($$$) or call his girlfriend (a potentially hostile witness if I ever heard of one) to testify. It can be difficult, not to mention expensive, to prove, so it’s a good idea to talk to an attorney in detail about whether this might make practical or procedural sense in your case.
For more information or to request a copy of our military divorce book for Virginia women, visit our website at hoflaw.com. Stay tuned for Wednesday, when we’ll talk about contacting his command for failure to pay support according to the MILPERSMAN.