What if he is kicked out of the military for his adultery?
We talked Monday about a question we get fairly frequently: Should I report my husband’s adultery to his military command?
The answer to Monday’s question is fairly straightforward. In almost every single case, I’d say absolutely not. There’s too much risk to you (from loss of potential child and spousal support to military health insurance, the military pension, and other military related benefits) and very little chance of reward. The small victory you may feel from watching him reap what he’s sown will be very short lived if it means that the financial consequences to you are disastrous.
But there’s no denying the fact that adultery is frowned upon in the military, particularly if that adultery took place between a superior and an inferior member. You didn’t make the rules, and you also didn’t have any control over his behavior – so it may be that his infidelity rears its ugly head without your involvement.
So, what happens if he’s kicked out of the military for his adultery (and it’s not because you called his command)?
Well, the potential impact to you can still, I’m afraid, be tremendous. If you haven’t yet negotiated an agreement, you may find that he’s not really willing to negotiate while his situation is so tenuous – and, frankly, you may not want to force him until a little more is known. You could file for divorce and ask a judge to decide, but a judge, too, may have a difficult time where the details are tenuous and the future is uncertain.
It is more likely, though, that the judge will show sympathy to you, and will do what he can to minimize the impact of your husband’s bad acts on your future prospects. Though he likely can’t de-emphasize a “less than honorable” discharge but so much, there are some tools in his arsenal that he can use to try to help lessen the impact on you, the non-guilty spouse.
Imputation of Income
Chief among these tools is imputation of income, and we often see that applied where a husband has been fired as a result of his own bad acts. If a husband – in this case, a military service member – is discharged because of his fault, even if he starts earning less than he previously earned, a judge can make him responsible for paying support (both child and spousal) at the level of income he earned previously.
This is likely a remedy that would not be available to you had you been the informant who ultimately caused your husband to lose his job. In that case, though it may seem unfair (I mean, you didn’t make the rules, you just pointed out that he broke them), to the court it might seem like you had at least a mitigating impact on the misfortune that has fallen on you, and so you have to bear some of the responsibility.
Modification and/or Termination of Support
Since January 1, 2019, spousal support entered into by agreement is modifiable. So, if you already had an agreement in place regarding support prior to your husband’s termination, you might find that he uses his termination as an excuse to petition the court to modify the spousal support award.
If your husband’s separation from the military is due to his infidelity (again, and you were totally uninvolved in the events leading up to his separation), the judge may be less inclined to modify your spousal support. After all, in this instance, he shouldn’t be able to benefit from his bad acts – that is, to luxuriate in a lower level of spousal support that only came about as a result of his own adultery.
Generally speaking, spousal support is modifiable based on a material change. There’s no question that this constitutes a material change, but you may find that the judge is less willing to modify in a situation such as this.
If you have an order granting you child or spousal support but he hasn’t paid up, he’s generating an arrearage. If his argument in court is that he’s unable to pay because he separated from the military as a result of his adultery, he’s less likely to get sympathy from the court.
You, on the other hand, would be sympathetic. In this instance, not only are you the wronged spouse, but you’ve also been financially impacted by his poor decision-making.
The judge can order the arrearages paid back, with interest, and can hold him accountable for making those payments.
Had you reported his adultery to his command, it is probably more likely that the judge would be flexible about the repayment of these arrearages.
Of course, nothing is ever guaranteed, especially in court. Many things are within a judge’s discretion, and the facts involved are relevant when it comes to determining how a judge would rule. I only tell you this to illustrate that there are ways that the judge may show his sympathy for your predicament if you have had no role in creating the trouble.
Of course, there are ways that you likely will be impacted. Your TriCare coverage would disappear if he were separated from the military (assuming that you’re not an already-established 20/20/20 spouse), and the military pension would disappear if he hadn’t reached 20 years.
It’s complicated, and the consequences can be pretty far reaching. For more information, request a copy of our military divorce book or give our office a call at 757-425-5200 to schedule a consultation.