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 answer to this straightforward question can be anything but simple.
The first step in answering this question requires an understanding of the military’s prohibition on adultery.
Many times, couples will separate in hopes of saving a marriage. After all, just getting distance from a painful, antagonistic situation can provide you with enough perspective to come back together weeks or months later and sort things out. The man, a newspaper reporter, left his wife in Boston and went on assignment in Russia for a year.
Their marriage had been on the rocks, but during the year apart, the two developed an email correspondence that brought them new intimacy and understanding.
(Indeed, they exist in that state to this day.) The woman, happily living in a townhouse in Miami, plays tennis during the day and spends evenings with her lover, another woman. In the man's case, getting a divorce would only make him available for remarriage, an idea he hardly relishes.The “explanation” portion of Article 134 identifies several considerations military commanders should consider in determining whether an act of sexual intercourse could satisfy the third and final element of adultery under the UCMJ, including whether the Soldier or their sexual partner was “legally separated.” When people refer to being “legally separated,” they generally mean one of two distinct legal situations " either they have signed a formal separation agreement with their spouse or that a state court has issued an order of separation.A formal separation agreement is essentially a written contract between a husband and wife resolving the significant legal issues between them involving property, debt, support, child custody, etc.When they came back together after 12 months apart, they were ready to really commit to the relationship and even decided to start a family.In other marriages, separation—as opposed to divorce —becomes a permanent way of life.