While adultery is a form of personal betrayal and causes great amounts of pain in many marriages, the courts may not consider it a major determining factor when divvying up a couple’s marital estate. However, it may play a role in the court’s decisions regarding other aspects of a divorce case.
Grounds for Divorce in Texas
Texas is a no-fault divorce state. This means that neither party has to show that the other was in the wrong or committed any bad acts. Rather, Texas Family Code Section 6.002 says, “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.”
Texas also allows fault-based divorces, in which one party uses one of the acceptable grounds for divorce as the reason for filing the petition. And adultery is one of the grounds for fault-based divorces in Texas. However, it’s very rare for the courts to divide an estate disproportionately in favor of one spouse simply on the grounds of adultery.
Proving Adultery is Extremely Difficult
In order to prove adultery to the courts, the accusing spouse will have the burden of proof to show that his or her spouse actually had sexual intercourse with someone else. For obvious reasons, this is exceptionally hard to accomplish.
Sure, the betrayed spouse can hire an investigator and try to collect evidence to convince the courts. Advances in technology have helped make this a bit easier over the years, but it can still be very difficult to obtain clear and convincing evidence of an affair.
But even if you could somehow prove it, the courts may not place too much weight on it. While there are exceptions, it may not ultimately affect property division to the extent that many spouses hope.
Adultery and Child Custody and Alimony Decisions
Adultery may be a factor, however, in decisions about custody and alimony. Some of the things the courts will consider include:
- whether the children witnessed the adulterous acts;
- where the acts took place; and
- how long the affair had been going on prior to filing for divorce.
Alimony can be affected if one party proves the other was adulterous. If the spouse seeking alimony is the adulterous party, the courts may bar him or her from receiving alimony.
However, if the spouse that is seeking alimony has never worked during the course of the marriage then that spouse could ostensibly receive a larger proportion of the estate. However, to some courts, the two situations – the lack of work experience and the adultery – may cancel each other out.
Consult an Attorney at Warren & Migliaccio
If you are in the midst of divorce in or around Dallas, or have questions regarding if/how adultery might affect property division and other aspects of your case, contact Warren & Migliaccio.
We can evaluate your case and help you determine the best way to proceed. Call our team today at (888) 584-9614 and schedule a free consultation.