Unlike in days gone by, adultery is no longer illegal. However, just because something isn’t against the law, doesn’t mean it won’t affect your divorce. That’s because in Texas, the law still allows individuals to file for divorce under fault-based grounds. And—as you might have already guessed—adultery makes the short list of acceptable faults.
But what is the legal definition of adultery? And what are these fault grounds we speak of? We’re glad you asked.
In this article, we’ll discuss how adultery could affect your Texas divorce, and why you might still want to hold off on filing under fault, even if you can.
What is Adultery?
First off, according to the Texas Family Code, adultery occurs when a married person has voluntary sex with someone other than their spouse.
Historically, this infidelity was considered a pretty serious offense (if you were a woman, that is), and it wasn’t uncommon for women to face maiming, torture, jailing, and even death for these crimes.
Happily, we’re no longer in the dark ages, and—regardless of gender—getting caught with your trousers down with someone other than your spouse is no longer punishable by death or imprisonment. But like we hinted above, that doesn’t necessarily make it a good idea. Besides being unsavory, these actions have the potential to trigger fault-based divorce grounds.
Adultery’s Role in a Texas Divorce
When filing a petition for divorce, your complaint must include the reason you want a split. These are called “grounds,” which can either be no-fault, or fault based. In the Lonestar state, there are four grounds for fault, including:
- Felony conviction;
- Abandonment; and,
When one of these grounds is cited in a divorce complaint, judges are allowed to evaluate the “bad behavior” of one spouse, and hold them financially liable for the marital breakup, as they see fit.
To those who have been hurt by a spouse’s wayward tenancies, this might sound like a great prospect. However, while adultery does have the potential to skew a property split in your favor, you should know that seeing theory through to execution can sometimes be difficult.
Meeting the Legal Standard of Adultery
If fault is something you’re committed to litigating, you should be prepared to provide proof that:
- The unsavory act did, in fact, occur;
- It happened during the course of your marriage; and that,
- This adultery was the cause of your breakup.
Unfortunately, the very nature of cheating typically requires some amount of discretion, so, it’s likely your spouse made at least a cursory effort to cover their tracks, making evidence tricky to come by.
Then again, maybe you anticipated this, and went to great lengths to document the affair before filing for divorce. If so, we applauded you on your foresight, but sadly, even ironclad evidence isn’t enough to guarantee a win.
In these situations, it’s not uncommon for judges to assume that adultery was a symptom, rather than the cause of your divorce. Thus, even with proof, it’s likely a cynical judge could negate the cause and effect element needed to win on grounds of fault.
Adultery’s Impact on Divorce in Texas
Still, while the legal standard for adultery can be difficult to prove, it can be worth pursuing in some situations, because of its impact on marital property.
Texas is a community property state, so under normal circumstances, what you and your spouse
bring into the marriage belongs to you both equally (no matter whose name is on the paycheck). However, if a judge chooses to uphold your fault allegations, that can all change quick.
In an adulterous divorce, judges have the discretion to rearrange the rules of community property as they see fit. This could mean giving your spouse a “less than fifty percent” share of community property, or perhaps assigning them a larger share of marital debt. It might also significantly impact how much spousal support they’re obligated to pay, and—regardless of fault or no-fault—it’s very likely that they’ll be required to reimburse the funds spent on their affair, before your judge divides property.
Ultimately, the specific dollar amount of adultery’s impact on divorce is case dependent, but suffice it to say that regardless of how affluent you are, being the accused in a fault-based divorce suit is not where you want to be in Texas.
Adultery and Custody
When evaluating these particular issues, courts look at all factors based what would be the child’s overall best interest. And, lucky for cheaters, being a crummy spouse doesn’t necessarily mean you’re an unfit parent. On the contrary, in Texas, the underlying presumption is that a child’s best interests are served by having a loving, healthy relationship with both parents whenever possible.
Because of the sanctity the law affords this parent/child relationship, courts are unlikely to strip parents of their rights completely. Rather, even in extreme circumstances (such as neglect or domestic violence), judges will—at the very least—attempt to offer some form of contact, even if it’s only supervised visitation.
In short, cheating is unlikely to affect how the court delegates parental responsibilities. The only way it might, is if the affair is somehow exposed your child to extenuating harm.
Fault-Based Grounds: A Cautionary Tale
Acquiring a divorce on fault-based grounds can be difficult, costly, and time-consuming. It’s also incredibly emotional. Once fault is on the table, things can quickly spiral into an environment of toxic mudslinging, which is arduous, no matter which side of the affair you were on.
Because of these reasons, even if infidelity did play a part in the dissolution of your marriage, sometimes it’s best to simply leave the allegations alone, and file under no-fault grounds.
Divorce Attorneys in Texas
Whether or not a fault-based divorce is right for your situation is a matter of facts. With ample proof and enough to gain, the stress and headache of proving it in open court could be worth it. However, more often than not, this is an added and unnecessary expense of time, money, and sanity.
If you’re uncertain, Neal Ashmore can review your case to determine the likely success of fault grounds in your circumstances. Call us today at (972) 436-8000, or schedule a consultation online with one of our expert family law attorneys, and let us help you establish what grounds might be right for you.