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In Texas, affairs do not seem to be changing the outcome of divorce very much for a civilian. It can play a role in some Court decisions, but it is not the sort of trump card some expect it will be to win everything in a divorce case.

So, as a spouse of a service member, because the military provides more possible consequences for adultery, you have more leverage in your divorce negotiation than is typical.

If Your Spouse Committed Adultery While Serving

You should use this leverage with wisdom. Do not disclose the affair to your spouse’s command. Once you have done so, you lose most all of your leverage because your service member will endure the consequences, whether you want them or not, and whether you think they are serious enough or not.

The fear of the possible consequence to the service member is where the leverage in your negotiation lies.

Do not disclose the affair on your Petition for divorce either, until you have attempted to work out your case with your spouse and with your lawyer if applicable, and have come to the highly certain conclusion there there cannot be a settled amicable divorce. The Petition for divorce is a public record document, so by alleging it in the petition, you are doing the same thing as you would be by calling your service member’s command and reporting the affair.

We see some spouses using their knowledge of an affair to extort their service member spouse out of more money. This could backfire. It is better to handle this through your lawyer because if you are demanding far more than a Court would deem reasonable, you could be viewed as abusing your position as a service member’s spouse. Asking too much of your spouse, more than he/she can offer, in exchange for your silence could be eventually disclosed to your Court, and harm rather than hurt your outcome, in the author’s opinion.

Also, threatening your spouse could result in him/her simply deciding to leave the military, which could reduce any entitlements you might have otherwise enjoyed after the divorce as a former spouse of a military member.

Also keep in mind that your spouse could face prosecution in the military for an affair. If your spouse is dishonorably discharged and loses retirement, by disclosing the affair, you might be losing your own retirement that you would have received through him/her.

Finally remember that even if your spouse is not prosecuted for the adultery in the military, he or she could be punished by losing rank, which would diminish cash you’re the service member’s pocket, and reduce child support calculations or other types of community estate or support that could have been offered to you.

For the Person Who Committed Adultery in the Military

The consequences that you could face range from a simple oral reprimand, to a letter of reprimand, to loss of rank, to prosecution.

Step 1. Really, don’t. It goes without saying that you should not have an affair. The military has a wide range of discretion on how it will administer knowledge that you had an affair, that can hurt your career, and reputation in the military. Adultery is a crime in the United States Military.

Step: 2. You should show your spouse this article, which explains some reasons not to disclose the affair to command, once a spouse has learned about it.

Step 3: You should see if you and your spouse can come to an agreement that would involve your spouse not disclosing the adultery to your command. You should approach this thoughtfully. Do not approach your spouse when she/he will be tired, hungry or not in a position to have an open mind.   Do not approach your spouse to negotiate the divorce when they have just learned about the affair. Also, until you are divorced, it would be best to cease your extramarital relationship.

Step 4. You should not admit to the affair to your spouse in writing, text, email, orally (could be recorded), or in any form. Admitting to the affair could help your spouse meet one of the elements of adultery as a crime, which is proving that the adultery in fact took place. Realize that spouses do sometimes hire private detectives to obtain proof of your behavior when they become suspicious of it.

Step 5. You should not panic. The worst part about adultery in the military is the unknown consequences you will face. But, there are numerous consequences that may not be harmful, such as oral counsel, a letter of reprimand (destroyed from your record after two years), or even a loss of rank for one year.

Minimizing Factors That May Make the Adultery Consequences Less Severe

Some things appear to lower the likelihood that the adultery will result in prosecution.

  1. Being in lower ranks of the military, such that your affair is not disclosed in any public forum that would hurt the reputation of the military;
  2. The affair was with a civilian. If for instance you are a higher rank and you had an affair with a service member, you are having the lower rank commit a crime, but a civilian is not committing a crime;
  3. If you do not have other issues with your command that have been administered against you, this will also help the overall outcome.

Surprisingly Perhaps, You Could Still Have an Uncontested Divorce

Adultery does not have to mean that your divorce will be a long drawn out, battle. You and your spouse can still come to an agreement about how to divide your estate, and raise your children if applicable.

If adultery is the only basis for the divorce, you could consider dividing the entirety of the estate 40% to the person that committed the adultery and 60% to the person who was not at fault, such that the spouse takes more economic value out of the marriage. It would not be reasonable for one spouse to ask for more than 40% of the estate, as despite any actions of one party, Texas still gives this spouse substantial rights to keeping their own accumulated property and money, and access to children.

In a divorce where there was adultery, the issue can sometimes become that the hurt spouse wants to see a Judge or Court tell that adulterer that he or she was wrong, and have a winning day in court, a victory of some kind.   This is not how the court system works in Texas.   Texas divorce courts are not the right forum to seek out victory or revenge. They are simply a forum where a Judge has one pie that contains all of your and your spouse’s debts/assets and kids. And, the Judge simply has to divide the pie, and take the next case.

For this reason, even in the face of something like an affair in the military, we at Cook & Cook still advocate for the agreed divorce to save you both time and pain, and enable both parties to move on as soon as practicable.

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