Even though Texas offers no-fault grounds for divorce, adultery can still play a role in the divorce proceedings. If the innocent spouse files for divorce first, they can opt for a fault-based divorce, citing infidelity as the reason for the breakdown of the marriage.
Whether adultery plays a role in your divorce case depends on whether the divorce was filed as a fault-based divorce. Adultery can affect the division of marital property, as Texas is a community property state.
What is true for all couples is that adultery in a Texas divorce adds another layer of complications, time, and expense to ending the marriage. Even if the aggrieved spouse cannot prove adultery, both parties will likely incur additional expenses to establish their position in the matter. If you do want to cite adultery as grounds for divorce in Texas, talk to an experienced Frisco family law lawyer about whether doing so will improve your position.
What is adultery?
Per Texas law, adultery is defined as voluntary sexual intercourse between a married individual and someone outside the marriage (i.e., not their spouse). The aggrieved spouse must meet the burden of proof that their spouse engaged in sexual intercourse with another. Evidence such as text messages, photos, or a video, sworn testimony from the other party, and their own eyewitness account (if they witnessed the infidelity) may all be considered by the court.
If the spouse citing adultery in the divorce proceedings meets the burden of proof for the judge, it can factor into how property division and child and spousal support calculations.
Financial implications of fault-based divorces due to adultery
Texas courts may consider adultery when dividing assets if the petitioning spouse can prove that their partner used marital funds to facilitate the affair. For example, a credit card statement showing hotel charges or a gift to the affair partner may be used as proof that the cheating spouse squandered marital funds. If the court determines the cheating spouse engaged in wasteful dissipation of marital funds, then they may award a larger share of community property as compensation to the innocent spouse.
Texas courts may not automatically award alimony (or a larger amount of spousal support) to the innocent spouse based on their partner’s proven adultery—but a judge does have the discretion to consider it, especially if the infidelity led to financial difficulties in the marriage or caused its breakdown, leaving the innocent spouse in an unstable financial position.
Legal strategies when adultery is a factor in Texas divorce
Working with a Texas divorce lawyer can help your position, whether you’re the innocent spouse or the one who committed adultery. If you’re the one who cheated, it’s vital to talk to your lawyer and be completely transparent about the adultery, any money you spent, and other details. Your lawyer can best protect you when there are no surprises.
The burden of proof of adultery is on the spouse citing it as the reason for the breakdown of the marriage, and as a factor in their proposed division of community assets. If you’re seeking proof of your spouse’s affair, be cautious in how you obtain this proof; courts may reject evidence that came from hacking or privacy violations, even though your spouse cheated, they still have protected rights to privacy.
If you are the spouse who cheated, it’s usually in your best interest to cease any extramarital activities until after you’re legally divorced. A judge may consider an ongoing affair when determining child custody, especially if your child’s other parent makes a compelling case as to why their child should not be around your affair partner. Listen to your lawyer’s advice about your behavior and associations to avoid jeopardizing your position.
Impact of adultery on child custody and support
Texas family law judges make child custody determinations based on what’s in the best interests of the child. Children 13 and older may have a say in which parent they primarily live with, but their requests are not guaranteed.
The emotional stress of an adultery-based divorce can dramatically affect your shared children. Younger children may blame themselves for one parent cheating, or may be angry at the unfaithful parent for hurting the innocent parent. Your child’s parent may petition the court to keep your affair partner away from your children, which may impact your visitation or possession of them.
Get guidance on how adultery may affect your divorce
The complications a fault-based divorce involving adultery brings to divorce in Texas can be overcome with the help of a skilled divorce lawyer.
To learn whether adultery may influence the outcome of your Texas divorce, contact Albin Oldner Law at (214) 423-5100 for a private consultation with one of our experienced North Texas divorce attorneys.
