If you are involved in a divorce in the State of Texas, chances are you are going to have a “Morality Clause” slapped on you. What is a “Morality Clause”? Well, in simple terms, it is a prohibition against a parent allowing anyone with whom they are involved in a dating or romantic situation to spend the night while the divorce is ongoing. The intent and purpose of the clause are well-meaning and noble. It is designed to protect the stability, routine, and provide consistency for children while Mom and Dad are divorcing. No one could debate this goal as virtuous and protective of children. However, in the real and practical world we live in, the real questions are: does it work, and is it worth it?
Does is work? It depends. If the parents are mature and grown up and believe that following the rule of law is important – then yes, it works. The fear of being held in contempt of court (yes, you can be put in jail for a violation) for allowing the high school sweetheart Mom or Dad reunited with online and are now trying to rekindle their passion can temporarily deter a parent from doing something that instinctively they know is not good for the kids. They will toe the line even when their self-centered emotions tell them otherwise. The children are saved from the angst and psychologically devastating effects of simultaneously being forced to deal with the loss of their family unit AND the introduction of a new adult figure in their lives. If the children are protected from this situation for even a few months, then they will be better off in the long run. If having a Morality Clause in place does nothing more than strike a moral chord in a parent to think more about their children than themselves, and they begrudgingly adhere to what it dictates, then it is a good thing.
On the other hand, if a parent views the Morality Clause as nothing more than an intrusion into their adult and private lives, then what will occur is a conscious and intentional course of action to find ways to “get around” the clause or to make sure they don’t get caught. The divorcing parent who won’t buy into the purpose of the clause will concoct all sorts of ways to avoid it. The morality clause is designed to avoid a child getting up on a Saturday morning to watch cartoons from being met with some guy or girl they don’t know drinking coffee in their pajamas in the kitchen. The Morality Clause doesn’t prohibit the new boyfriend or girlfriend from being around the kids – only from staying the night. Therefore, most of the clauses have a time limit to define “overnight.”
The Denton County Standing Orders sets the hours of an overnight between 10:00 p.m. until 7:00 a.m. Dallas County, Collin County, and surrounding counties vary as to the starting and stopping times, but each defines what an overnight will be. So, the parent that can’t accept the purpose of the Morality Clause will go through all kinds of machinations to give the appearance of compliance. They might make a big deal of the paramour leaving right before the start time of the overnight time then put the kids to bed and slip the new boyfriend or girlfriend in the back door and into the bedroom. The alarm is set early the next morning and Mommy or Daddy’s new friend leaves early out the back door only to reappear right at 7:01 am with donuts and kolaches for everyone. What a great guy or girl. This is but one of many ways to try and skirt the Morality Clause and it is played out thousands of times each weekend by custody litigants.
So, if you are a rules follower because you believe the law is there for a reason or only because you are afraid of negative consequences – then it works. A psychologist friend of mine once told me that the #1 universal truth he has found in all his years of treating his patients was that “people are going to do what they really want to do.”
Is it worth it? If your divorce is in a county that has standing orders and a Morality Clause, like Denton County, you really have no choice while the case is pending. However, the issue always comes up in finalizing the divorce as to whether the parties will agree to extend it post-divorce or whether the Judge of the Court will make it extend into the divorce decree. The spouse or litigant that is not involved in a new relationship may want it included and the one who is looking to continue their relationship with the new “soulmate” after the divorce may fight to keep it out – or water it down.
There are as many variations of the Morality Clause as there are leaves on a tree. Lawyers can bill many hours crafting, negotiating, drafting, and trying Morality Clauses. This is not a financially sound idea. In addition, even if you can get one into your divorce decree – what benefit does it have to you? If your ex is determined to violate it and you bring an action to enforce it, guess who your number one witnesses are? Your kids! The only indisputable proof you are going to have is your kids testifying about waking up in the middle of the night scared and going to see Mommy or Daddy and finding someone else there. Are you going to call your kids to testify? Of course not – that double or triples the harm you are trying to protect them from. Can you use a private investigator? Yes, but that now adds another layer of cost to your already too expensive litigation and all that PI is ever going to be able to say is that the paramour was seen entering the house or apartment and never leaving until the next morning. While this may be persuasive, such proof is never conclusive.
Repeated violations (even if proved circumstantially) can help significantly in a post-divorce custody change lawsuit. However, that edge is immediately reduced to moot if your ex simply decides to get married. Paramour now becomes stepmom or stepdad.
After 44 years of drafting countless Morality Clauses and then filing actions to enforce them, it is my opinion that they are, over the long term, not worth the investment of money and time. The money and time are better spent with quality mental health experts working with your kids (if necessary) to deal with the new situation and good old common-sense parenting. If you continue to harbor anger and resentment, rely on your family, friends, church, and professionals to get your kids beyond it. Doing otherwise will only make the situation for your children worse.
Years ago, when I was a very young attorney, a wise District Judge gave me this advice. He said: “It is an axiom of divorce that the more a paramour is at the forefront of the case the more complicated, expensive, and time it will take to get it done”. He was right – Morality Clause or not.