Q. What kind of trouble could a service member get into for entering a sham marriage?
A. Housing and immigration benefits are usually the objects of sham marriages. Service members who enter into a marriage for the purpose of wrongfully obtaining such benefits could end up facing charges such as making false official statements and larceny of military property in violation of Articles 107 and 121 of the Uniform Code of Military Justice.
It is important for service members to understand what a “sham” or fake marriage is. “Although the validity of a marriage is ordinarily a question of fact to be decided in accordance with state law, state law is not determinative where a service member enters into a sham marriage to fraudulently obtain government benefits or to commit immigration fraud,” the U.S. Air Force Court of Criminal Appeals said in Brittney L. Hall (2014). In fact, marriages that were not valid under state law due to technicalities would not be deemed shams so long as the two parties entered the union “in good faith” instead of with an intent to wrongfully obtain benefits, the court said.
Living with a spouse in the same home will also not make a marriage irrefutably authentic to the government. More important is the reason why the two got married in the first place. Was it love or the desire to obtain a certain allowance or immigration status? “A sham marriage is invalid from its inception,” the court in Hall said. It is also important to point out that not sharing the same home with a spouse does not make a marriage a sham. Again, what matters most is the intent at inception, not the living arrangements.
The Navy-Marine Corps Court of Criminal Appeals emphasized this point in U.S. v. David D. Curry (2010), in which the appellant, a Navy aviation boatswain’s mate airman, had been convicted of larceny of military property of a value of over $500. The appellant in this case married a fellow sailor after eight months of dating. However, the marriage was rocky from the start and the two lived together for only two to three weeks. A few months after they got married, the appellant’s wife was separated from the Navy. The appellant then applied for, and began receiving a basic housing allowance at the married rate. The appellant did pay some of his wife’s debts and provided her with a pay allotment.
The government’s argument that the appellant was in a sham marriage was largely based on the fact that he had lived with his wife for such a short time. But the court disagreed and not only set aside the finding of guilt and sentence, but it also dismissed the charge. The court noted how the couple dated before getting married, entered a one-year lease agreement together, and did live together, albeit briefly. The appellant’s payment of his wife’s debt was another factor that contributed to the marriage’s authenticity. “While this record does not paint a picture of marital bliss, it likewise does not convince us, beyond a reasonable doubt that the appellant intended to steal military property,” the court said.
Service members accused of being in a sham marriage and charged with larceny of military property or making false statements should immediately consult with a military law attorney. Depending on the circumstances, an attorney could show the service member entered into the marriage in good faith and without the intent to wrongfully obtain benefits.
Along with being the founding partner of the law firm Tully Rinckey PLLC, Mathew B. Tully is a veteran of Operation Iraqi Freedom and Operation Enduring Freedom. E-mail questions to askthelawyer@fedattorney.com. The information in this column is not intended as legal advice.