Does Adultery Play a Role in a Texas Divorce?

Texas Divorce and Adultery

Most Texas divorces are difficult, and every divorce is unique. If your spouse engaged in an affair during your marriage – or during the divorce process itself – it can make an already challenging experience that much more painful. If you are considering a divorce and wondering if your spouse’s unfaithfulness will play a role in its outcome, you need to speak with an experienced Houston divorce attorney. As discussed in our article, “Meeting Your Divorce Lawyer for the First Time: What you need to Know” you must disclose this information. In the end, your spouse’s infidelity can affect the outcome of your divorce, but the effects likely will not be as straightforward as you might imagine.

Texas: A No-Fault Divorce State

Texas is a no-fault divorce state because you do not need to cite fault to obtain a divorce. In a no-fault divorce, insupportability (often referred to as irreconcilable differences) is the reason behind the divorce. It is important to recognize, however, that in Texas – unlike in many other states – you have the option of filing a divorce based on fault, including adultery. While most Texas divorces are no-fault, and the path toward such a divorce is far more straightforward, there are instances when pursuing a divorce based on fault is the appropriate approach. A dedicated Houston divorce attorney will help you determine your best options through the divorce process.

The Legal Definition of Adultery

For your spouse’s infidelity to reach the level necessary to file for a divorce based on fault, his or her actions must correspond with Texas’s legal definition of adultery. In the Texas Family Code, adultery is defined very specifically:

• A married person who voluntarily has sexual intercourse with someone who is not his or her spouse commits adultery.
• A married person who engages in sexual acts (that are not intercourse) with someone who is not his or her spouse has not committed adultery.

This distinction can be a difficult concept to come to terms with. For example, even if you discover that your spouse is having a heated relationship, including explicit photographs, on his or her phone or computer, this relationship does not equate with the legal definition of adultery. In other words, even though your spouse is engaging in behavior that you – and most other people – consider a betrayal, it is not adultery in Texas unless it meets Texas’s legal definition of adultery.

People also read: At Fault Divorce in Texas: Abandonment

We Were Separated at the Time

Even if you and your spouse were living separately at the time that the adultery occurred, it has no bearing on the legal claim of adultery. In Texas, married couples remain married until they are divorced. Texas does not recognize legal separations, so if your spouse begins a new sexual relationship before you are divorced, he or she is committing adultery. This is true even if you are separated and going through the divorce process.

Proving Your Spouse’s Adultery

To bring a divorce that is based on your spouse’s adultery, you must be able to provide proof of that adultery with evidence that is “clear and convincing.” This is a higher standard of proof than the “preponderance of the truth” that typically applies in civil cases. The necessary proof can be as simple as your spouse admitting to the relationship, but it can also necessitate compiling evidence supporting your claim. This means that your divorce is going to be decidedly more complicated and more labor-intensive than a no-fault divorce would likely be. Your trusted attorney will help you determine if the additional work outlay is worth the likely outcome.

Adultery and Your Divorce

In Texas, your marital property is not necessarily divided equally in a divorce but in a manner that the court deems “just and right.” This means that the judge who hears your case has considerable latitude regarding the division of your marital property, which is the primary focus of most divorces, other than child custody arrangements. As such, the judge who hears your case can consider your spouse’s adulterous behavior when determining how your marital property should be divided between the two of you. If your spouse committed adultery, you can request that you be awarded a disproportionate percentage. Again, this outcome remains at the judge’s discretion when deciding property division in a Texas divorce.

It is also worth noting that pursuing a divorce based on adultery can have a motivating effect on some spouses. If your spouse is very concerned with his or her reputation, he or she may be inclined to agree to more generous settlement terms with you outside of court. Generally, avoiding court – where the judge will determine your financial future – is better for everyone. For a more in-depth discussion of property division during a Texas divorce, read our article “Property and Debt Division in Texas: What You Should Know.”

Some Components of Divorce Are Not Affected by Adultery

While your spouse’s adultery may play a role in how the court divides marital property between the two of you, there are certain aspects of your divorce that it will not affect:

  • Adultery does not affect eligibility for spousal maintenance or alimony. However, if you are eligible, the amount and duration of support may be affected.
  • Adultery will probably not affect the child custody arrangements resulting from your divorce. This illustrates that being a faithless spouse does not necessarily make someone a bad parent. Our article “Texas Divorce and Spousal Maintenance” gives an in-depth overview of spousal maintenance.

Moving Forward with a Fault-Based Divorce

There are situations in which moving forward with a divorce based on adultery is meaningful and situations in which it is not. A divorce based on fault is typically a more complicated and expensive endeavor, so unless your marital property is fairly extensive, you may be better off going with a no-fault divorce. Again, however, every divorce is as unique as the two divorcing individuals, and a dedicated divorce attorney will help you see the big picture and identify the option that works best for you.

If You Are Facing a Divorce that Involves Adultery, Consult with an Experienced Houston Divorce Attorney Today

Divorce is always difficult, but infidelity often makes it that much more painful. If adultery plays a role in your divorce, the dedicated legal team at The Rudisel Law Firm, P.C.,can help you navigate your best path forward. Our experienced divorce attorneys are here to help, so please fill out an online evaluation or call us at 713-781-7775 today.

Please read the following articles for a more involved discussion of Divorce in Texas: