An Overview of Divorce Law in Texas
Texas divorce law operates under the principle of "no-fault," meaning that either spouse may bring an action for divorce without having to prove fault on the part of the other spouse. However, there are some specific grounds under the Texas Family Code, Chapter 6, that can be cited as the reasons for divorce in the state.
The grounds for divorce are:
- (1) Insupportability (repairs of the marriage cannot be accomplished);
- (2) Adultery (marital infidelity);
- (3) Conviction of a felony (imprisonment for at least one year);
- (4) Abandonment (one spouse leaves the other with no intent to return);
- (5) Living apart (separate and apart for at least three years);
- (6) Confinement to mental health institution (for three years or more); or
- (7) Cruelty (harsh or abusive behavior that causes mental or physical injury to the other).
Adultery is something that can be cited as a fault by the spouse who was unfaithful. This is simply cited in the paperwork as having occurred , but will not directly affect whether the person filing for divorce is successful in acquiring it.
Divorce proceedings in Texas typically involve the wife being given the right to remain in the family home during the duration of the divorce case – and until the judge renders a decision. However, the husband has the right to file a petition for exclusive possession of the home, which if granted will give him access to the home, denying the wife the right to live in the house. If the husband files and is denied, he cannot file again for six months. If the wife files, she cannot file again for three years. Essentially, the wife has the advantage in this situation if she filed first.
Divorce and Adultery in Texas
Adultery is a ground for divorce in Texas, as well as many other jurisdictions. Put simply, adultery is defined as the voluntary sexual intercourse of a married person and some third party or someone other than the other spouse. Texas law does not apply a "sliding scale test" to this type of conduct. By way of example, if a married person has sexual relations on a one time basis with someone other than their spouse, this conduct can be used as grounds for a fault divorce.
In Texas an adultery claim must be made within 12 months of the conduct taking place, or the adultery claim will likely be time barred by the Statute of Limitations of one year of suit on a sworn account. However, limitations does not apply to divorce in Texas, otherwise the divorce never ends.
In a contested divorce proceeding, a finding of adultery by the Court can affect the issues of: property division, spousal maintenance, child support, possession of and access to children, conservatorship of children, and the division of the community estate. Much like a fraud case, if a court finds that a party benefitted in some form from the commission of the adultery, then the Court may divide the community estate in such a manner that it denies the wronged spouse relief in one or more of the above issues. For example, if one spouse on the "adultery" side of the house benefited from funds owed to the community estate to the wronged spouse, then the Court can recapture those funds as having already been paid to the "adulterous" spouse. This can prove to be a very effective tool to property owners in a divorce case. Certainly, the court could offset the "overpayment" or "misappropriated asset" from the "adulterous" spouse’s share of the community estate, however, if executed at the correct time, the strategy of recapturing the asset and self-paying the "asset" is very effective.
In the end, there are very few circumstances where a person’s cheating on a spouse results in a divorce that "brands" the offending person with such degree of legal liability that it significantly changes the division of the community estate. The only litigated example I can think of where a finding of adultery resulted in the equivalent of a "punitive damage" verdict against the cheating spouse was in the case of Tatum v. Tatum.
Can You Prove Adultery in Your Texas Divorce?
To prove adultery in a divorce action, the law requires that a husband or wife demonstrate that the other spouse had the intent to commit sexual intercourse with a person of the opposite sex. This intention does not mean that adultery has already happened, and the "yoga pants" defense is still alive and well. In 1922, the Texas Supreme Court explained, "The offense of adultery is not consummated by mere access of one person with the other, or the opportunity to so access… The offense does not result from the acts of the persons alone, but from the concurrence of their wills in an intention or purpose to commit adultery." Essentially, adultery is not just an act, but the intention to do something coupled with that act. It must be "voluntary and intentional," meaning that if a husband were to meet a woman for sex, but didn’t plan on it going that far, it technically did not constitute adultery unless that was the intention in meeting up. Reaching the high standard of proof needed to prove adultery is not always possible. Most cases of alleged adultery come down to sufficient evidence between the individuals involved. In some extreme cases, often involving women, a husband will pay for sexual favors. This scenario will be the easiest to prove as there will be proof of payment and the services rendered. Unfortunately, for most cases, adultery is often a he said she said scenario involving more subtle evidence or circumstantial evidence. Text messages are often a common piece of evidence, where a message such as "I’m almost home" or "You’re the hottest woman I’ve ever seen" can be used to prove intent. However, you need to have a judge and jury interpret what those messages mean. When proving adultery is difficult, other evidence may be offered and prove circumstantially that the cheating spouse has had an affair. Witnesses like friends or family to testify about the cheating spouse’s activities or whereabouts, or photographs to support the claims may be introduced to prove adultery. If adultery was committed within a period of three months of the separation date, a photograph may be a no-brainer. Whether or not this evidence will be admitted is in the judge’s discretion and may come down to the evidence’s relevance to the case. This often happens when that evidence was obtained illegally, such as a screenshot of a phone conversation or taking someone’s picture without his or her consent.
How Does Adultery Affect a Divorce in Texas?
The impact of adultery on settlements can vary greatly depending on whether the parties can come to an amicable agreement at the outset. Adultery does not affect property division in Texas. The court will divide the community property in a manner it deems equitable to both parties, with no distinction as to whether one spouse is at fault for committing adultery.
However, adultery may affect spousal support (alimony) to some extent. A court may take into consideration the income that the spouse who committed adultery brought into the marriage. If this income is substantial , the court may increase the amount of spousal support the victimized spouse would receive in order to offset the loss of wealth suffered by the adulterous spouse’s actions.
There is more leeway in child custody agreements when adultery is a factor. The victimized spouse has much less burden of proof than if adultery wasn’t involved. For the court to rule in favor of keeping child custody with the victimized spouse despite adultery, it has to be shown that: 1) the primary caretaker is unable or unwilling to support and maintain the child; 2) that the primary caretaker has engaged in criminal activity that could endanger the child in the environment at home; or 3) that the primary caretaker has engaged in harmful acts that could pose a threat to the child’s well-being or welfare.
Texas law does not mandate adverse action for infidelity in child custody agreements, only that it be considered as part of all relevant factors of the case.
Adultery in a Texas Divorce: Legal Guidance
When adultery is at the heart of your divorce, it’s essential to have an experienced attorney who can advise you on the right approach to take. From establishing how the affair will impact property division to calculating the potential for spousal maintenance, your lawyer will need to provide sound and timely advice as your legal proceedings unfold.
We always recommend consulting with a lawyer before taking any steps in your divorce case, but this is especially true when adultery is involved. While your spouse may blame you, citing the affair as grounds for divorce, how you can use this act of indiscretion to your advantage depends on your individual circumstances. Additionally, if you cheat on your spouse and admit to an affair, the judge in your family law case will likely take this into account as you attempt to negotiate the terms of your impending divorce, potentially costing you time and money in the end. You need objective and knowledgeable advice on how to best proceed.
Unfortunately for those caught cheating, adultery is rarely tolerated in modern society — and many judges consider an extramarital affair as grounds for fault-based divorces. Adultery may actually result in an unwelcome shift in tactics as you move forward in your family law case.
Your attorney will help you understand the implications of adultery and related claims, advising you on the most effective approach for your specific situation. In addition to general legal advice focused on adultery, your attorney will help you get through the emotionally-charged process of divorcing an unfaithful spouse.
The Emotional and Financial Toll of Adultery
As with any event in our emotional lives, the effects of an affair go much deeper than the courtroom. Beyond the ultimate distribution of assets and obligations are years of repression, bolstered through the judge’s separation of marital property from separate property. The family unit is fracturing, the kids are affected, the offending spouse is often very conflicted about the affair, and the innocent spouse is experiencing deep psychological trauma.
Frequently, we have been involved in criminal proceedings, where a party’s infidelity is somehow used as a characterization of their crime (abuse, theft, etc.), even though there is no connection between the two. The truth is, adultery is one of those socially responsible behaviors that simply doesn’t translate into a legal consequence. But, despite the absence of a clear, specific legal consequence, an affair can cause untold emotional damage to what was once a happy marriage.
Emotional damage is not something easily classified by the law . The traumatized spouse is now compelled to navigate a range of emotions (anger, despair, betrayal, rejection), while figuring out how to support their children while they deal with their own grief.
Socially, when a spouse finds out about the affair, it is likely that family and friends will either shirt from or embrace the situation. Traditionally, the person who commits the offense (the adulterer), is ostracized. For the couple that becomes the subject of that excluded family environment, the effect is often overwhelming. Some couples who survive what would easily break another couple become even closer, but those are few.
To sum up, the average couple is often fundamentally changed by adultery. While they may still want a divorce, an affair is almost never the reason for the divorce. Facing the shame of embarrassment and ridicule, the public humiliation an embarrassing trial could bring, or ostracism, a couple could better persevere through a mutually unintelligible relationship. The affair was a symptom of a pre-existing problem.