Adultery and Divorce in Texas

Adultery and Divorce in Texas

According to the CDC, in 2020, the Texas divorce rate was 1.5 per 1,000 people. A large percentage of these marriages that resulted in divorce were plagued by infidelity. Any time a spouse cheats, you can be stripped of your sense of comfort, security, and happiness in your marriage.

Adultery is a leading cause of divorce in Texas. If you have been the victim of a cheating spouse and are considering divorce, you need the legal guidance of our Southlake divorce lawyers at Mims Ballew Hollingsworth⏐Family Law.

What is Adultery?

According to Texas law, adultery is defined as the voluntary sexual intercourse of a married person with another person who is not their spouse. Texas does not recognize legal separation, so infidelity of a spouse during a couple’s time apart will still count as adultery. Texas Family Code § 6.003 states that when adultery has occurred, the court may grant a divorce in favor of the non-cheating spouse.

No-Fault v. Fault-Based Divorce in Texas

Texas allows for no-fault divorce, meaning that neither party must have a specific reason for the court to grant a divorce. Texas law also states that “the court may grant a divorce without regard to fault if the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.” Basically, a couple does not need to prove fault, but rather that neither of them can endure remaining in the marriage.

Texas also allows fault-based divorce, and adultery can be grounds for this type of divorce case. Adultery can have an impact on the terms of the divorce. If your spouse was unfaithful, you would need to show that their affair was responsible for the breakdown of your marital union.

In order to prove adultery, a spouse must provide convincing evidence. Common evidence admissible in court includes emails, phone calls, and text messages.

In Texas, the court will accept either direct or circumstantial evidence to demonstrate adultery. While direct evidence demonstrates the truth of an assertion directly, circumstantial evidence is indirect evidence that will infer certain facts. Thankfully, circumstantial evidence can be presented on its own to prove a partner’s infidelity.

How Will Adultery Affect My Texas Divorce Case?

If you or your spouse has had an extramarital affair, it is possible that adultery will impact your divorce case in Texas. In fact, adultery can have a serious impact on your divorce, as you must prove fault-based grounds, as we discussed above. 

If you successfully prove your spouse committed adultery, it may influence the courts decisions around property division, child support, child custody, and more. 

With an at-fault divorce Texas is a no-fault state, meaning that this will be the default unless one party is able to prove that there was fault and that this led to the grounds for the divorce. Providing a reason for an at-fault divorce can impact the court’s decision when dividing property and other assets. Adultery is considered grounds for an at-fault divorce in Texas. 

If you are requesting an at-fault divorce and providing adultery as the reason you will need to show proof, unless your spouse admits that they were cheating. The evidence that you present to the court must prove that the infidelity happened when you were married, before the divorce was filed. Although these pieces of evidence may be difficult to find, your attorney can help to advise on this process. This results in airing very personal issues in court, but it is necessary in some cases. 

Often, people know their spouses were cheating, but they cannot sufficiently prove it to support a fault-based divorce. You should always discuss in-depth with your divorce lawyer whether you have a strong enough case before you bring the issue of adultery up in your divorce.

Consequences of Adultery

The courts will take a close look at the details of the marriage and the reason for the dissolution. If one spouse has been unfaithful during the marriage the judge may put additional weight on this when factoring decisions around different issues in your case. Often, the spouse who cheated in the marriage will receive a less favorable outcome in the division of assets. The judge may also take these actions into consideration if there is a child custody arrangement being discussed as well. 

How Does Adultery Impact Property Division?

Texas is a community property state, meaning that any assets that were acquired during the marriage (with some exceptions) will be divided equally upon divorce. For instance, wages and rental property income earned by one spouse are considered community property.

Because Texas is a community property state, you might assume that the courts will divide all property equally regardless of the reason for the divorce. This is not always the case. Adultery that occurred during the marriage can have consequences in the way that property, debt, and assets are divided during the divorce. 

An adultery accusation can threaten the 50/50 split of assets. Given the circumstances, a judge will always seek to make a decision that is unbiased and fair.

What Impact Does Adultery Have on Alimony?

A judge will look at several factors in determining alimony (in Texas, known as “spousal maintenance”).

Essentially, a judge must discern if the requesting spouse is unable to care for their “minimum reasonable needs.” Unless there is an extenuating circumstance, the court wants to see that a spouse is working toward eventually supporting themselves.

If a spouse is unable to support themselves, the court will take this into consideration. Extenuating circumstances, such as a spouse suffering from a physical or mental disability or taking care of a special needs child, will impact a court’s decision in granting spousal maintenance.

Does Adultery Impact Child Custody?

Generally, adultery in itself will not impact a court’s decision in granting custody of a child to the cheating spouse. However, if the cheating spouse’s new partner negatively impacts the child’s relationship with their parent, this may affect a judge’s ruling.

Coping with Adultery during Divorce Proceedings

Dealing with the aftermath of discovering that your spouse has been involved in an extramarital affair can be devastating. Understandably, emotions can be heightened and triggered by the discovery of this behavior. Although it may be difficult to maintain a calm demeanor it is helpful to stay focused on the divorce process as you are going through this. Your attorney can help to advise you on the best way to manage and cope with adultery during the divorce.

A Southlake Divorce Lawyer Near You

If you have found your spouse in the act of infidelity or found out after the fact, you need an attorney who knows your rights. Our divorce attorneys know what it takes to prove infidelity in court and are here to answer any of your questions. Contact us today to schedule a consultation.

Fort Worth, TX Divorce & Family Lawyers

Constance Mims has over fifteen years of experience practicing exclusively family law. Mrs. Mims is Board Certified in Family Law, by the Texas Board of Legal Specialization. She is Collaborative Law certified and is a shrewd negotiator, not to mention her experience in the most challenging child custody, child support, spousal maintenance, alimony, prenuptial agreements, and divorce issues, both in court and in the appellate arena.

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