Texas Divorce 101
Texas has a "no fault" divorce option. This means that the petitioner does not have to provide evidence of wrongful or illicit conduct. In other words, a Texas divorce can be granted if one party says so without giving a cause. However, under Texas law, a divorce can also be granted if the petitioner, after filing, proves to a judge that the other party engaged in certain behaviors, one of which is "adultery" as understood under Texas law. In either case, the result is the same. The parties are divorced. The difference is only whether one party must exhibit some type of wrongdoing before the divorce is granted.
At this point , you may be wondering what the grounds for divorce are and whether your spouse’s behavior can be used in court to obtain a divorce on the basis of fault grounds. Texas recognizes seven (7) no-fault grounds for divorce. These include that the marriage has become insupportable because of discord or conflict of personalities that has destroyed the legitimate ends of the marriage relationship and that there is no reasonable expectation of reconciliation. Other grounds for a no-fault divorce is a finding that a spouse has been confined to an institution and is mentally incompetent; that a spouse has been convicted of a felony and imprisoned for at least one year; and that a spouse is living apart from the other spouse with a reasonable expectation of reconciliation.
Divorce on the Basis of Adultery
Among the many different labeled legal terms for a divorce, adultery is one of those that is immediately recognized. If you want more information on divorce, check my law blog on divorce law Texas.
Adultery is one of the grounds for divorce specifically defined in the Texas Family Code. The Code defines adultery as the voluntary sexual intercourse of a married person with another not the spouse. A suit for divorce may be brought because of adultery and the finding of adultery will affect the final decree.
Adultery affects the division of marital property. If either spouse proves the other spouse has committed adultery, then the court may divide marital property in a manner it deems "just and right," without regard to any injustice that might result from the division to a party who did not commit adultery.
If you are contemplating filing for a divorce and have been unfaithful to your spouse, it is advisable that you not contact your spouse by email or by any other electronic means including text messaging, unless you have obtained legal advice particular to the facts of your case. A spouse may acquire evidence of adultery from any source and use it as evidence in a court of law. You need to be careful! Adultery may be proven even if the spouse with whom the other spouse engaged in adultery denies the same.
If you believe that you have just cause to file for a divorce, you would be strongly advised to talk to an experienced family law attorney.
Proving Infidelity in a Divorce Case
Proving adultery in court comes down to establishing proof that two (2) things happened in order for adultery to occur:
(1) There was an affair between your spouse and the person with whom your spouse was having an extramarital relationship, and
(2) That affair was voluntary/ consensual. Your spouse did not "…get raped into it…".
These two elements must be proved by "clear and corroborated" evidence in a Texas Family Law Court in order for the adultery to be considered by the Judge or Jury and can influence child support, child custody, and/or property division.
In the divorce context, Family Code Section 6.003 provides that either spouse may testify about acts of adultery. However, if the testimony of a spouse regarding alleged adultery is the "sole" means of proving adultery, then it is insufficient to establish that adultery has occurred. Tex. Fam. Code Ann.§ 6.003 (2003); Vickery v. Vickery, 954 S.W.2d 440, 442-43 (Tex. 1997) (overruling prior cases, including In re G.M., 669 S.W.2d 138, 140-41 (Tex. App.—Dallas 1983), which held that spouse’s uncorroborated testimony was insufficient).
In order to bolster the testimony of the cheating spouse, corroborating evidence of the alleged acts of adultery must come from a source outside of the accusing spouse. The corroborating evidence can include, but is not limited to: (1) evidence of opportunity, motive or both; (2) evidence of guilt; (3) eye-witness testimony of the cheating spouse’s opportunity to commit adultery; (4) confidential admissions of adultery between the cheating spouse and his or her paramour; (5) admissions to others, including detectives and witnesses; (6) wife’s testimony denied an opportunity to speak to husband in private or file a police report against cheating spouse.
How Adultery Affects Alimony
Adultery also may be a factor when it comes to spousal support, or alimony, payments. In Texas, a court may consider the "educational background, employment skills, earning potential," and other factors, when determining the amount and duration of support payments.
Courts may consider adultery in these contexts, and in some cases, "conduct" during the marriage may itself be considered. The direct cause of the divorce comes into play here. If a spouse’s actions were the cause of the divorce, adultery may impact the economic damages ordered by the court.
If your spouse committed adultery and you can prove it, you may ask the court for more support, but these actions don’t always impact these amounts, particularly if you already have a good job. Because this is a discretionary factor ignored by most judges, it’s hard to offer generalizations of what you might receive, if anything. As with the division of property, there are no "formulaic" expectations of how much you would receive, if any, if adultery is proven.
A court may also consider elements of infidelity in property division matters, where a judge may consider any economic benefits one party received from their infidelity or any dissipation of assets (e.g., buying gifts for someone else that take away from the marital estate).
The spousal support provisions in Chapter 8 of the Texas Family Code apply only to couples who do not have a final divorce decree. However, courts may consider fault in awarding or not awarding a suit for spousal support under section 8.051 of the code. Adultery may be one of the factors a court considers when deciding whether to award temporary support.
The courts have relatively wide discretion in what they see as "adultery" in the sense that they seem to allow varying degrees of infidelity to impact temporary spousal support. Whether adultery of various types impacts spousal support depends more on the level of infidelity than the type of infidelity. If your spouse spends substantial amounts of time with another person in the course of the marriage, this infidelity may be substantial enough to impact your "suit." A court is unlikely to consider sending a romantic text message as the type of infidelity likely to circle back to impact spousal support.
Whether an affair, infidelity, or other form of marital misconduct impacts a specific family law matter typically depends on the nature and extent of the action in question, how the offending party acted upon these impulses, the effects of the action on the family, and other circumstances.
The Effects of Adultery on Property Division in Divorce
Divorce in Texas can get contentious when one spouse has committed adultery. Aside from the emotional toll that extramarital relationships can have on a marriage, the impact of adultery can be seen during the handling of a community estate during divorce proceedings. While the general rule in Texas divorce proceedings is that community property will be divided equally between the parties, an unequal division is sometimes warranted, especially when substantial misconduct is alleged.
The existence of adultery does not necessarily equate to automatic receipt of a disproportionate share of community assets. It also does not mean that a party will receive a disproportionately large share of the community estate . Instead, proving adultery, followed by the introduction of evidence of how the adultery affected the marital estate, may result in one spouse receiving perhaps more or less than a equal share of community property.
In Texas, the general rule is that marital property is divided equally – 50:50 – between the spouses. There are some circumstances that can alter this presumption, such as in the event there is a fault ground for divorce. One of the fault grounds for divorce is adultery of a spouse. If adultery is proven in a fault divorce, a court possesses the discretion to allocate that portion of the marital estate to the innocent spouse. However, this is unusual with no more than 5% of divorce cases containing adultery as their fault ground.
Child Custody and Adultery
In Texas, courts are not supposed to base child custody decisions on which spouse committed adultery. Courts will examine the best interests of the child, ignoring what went wrong during the marriage or which spouse was unfaithful. A divorce action in Texas must end with one of the spouses being awarded custody of the children. A judge will award a custody court order at the end of a contested divorce without consideration of unlawful actions taken by either spouse.
Although a spouse may file evidence of adultery in their divorce petition, this evidence is not taken into account in the final judgment. However, if both parties have committed adultery, courts might take that fact into account. If both spouses were equally unfaithful and neither spouse was caring well for the children, a judge might award custody to a third party. This might be a grandparent, other family member or a family friend.
Courts will consider whether any custody order has been breached, but Texas divorce laws are not designed to find fault in family law matters. Courts will not divide children based on which spouse was right or wrong during the marriage.
Attorney Assistance
Diversionary concerns aside, adultery remains fairly common in divorce cases. An experienced family law attorney can assist you in determining whether your case could or should incorporate a claim based on adultery. An attorney experienced in adultery claims will also provide you with legal advice about your options and your objectives in pursuing the claim . Factors to consider include whether you want your spouse to admit to the adultery directly in a collaborative divorce, whether you want a jury or judge to be the fact finder of whether the adultery has occurred, and whether or not your evidence supports the public airing of this issue. Having an attorney who understands the ins and outs of an adultery claim can cause you to give a little more thought to the value of this claim, as this often makes the case complex and costly. In many instances, it may be worth it.