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From movies and television, you would think it was common for people to start dating in the middle of a divorce; but the reality of what this can do to your divorce varies by state. Texas generally frowns on spouses dating while they’re seeking a divorce. This is not a hard and fast rule: every case is considered uniquely, and the various judges have different views on the situation. This means it’s vital that you listen to the advice of your attorney on this matter.
Here at the Skillern Firm Divorce & Child Custody Lawyers, our family lawyers have been asked this question. We often see instances where two legally married spouses may be separated for a time prior to initiating a divorce proceeding. Or at times the process of a divorce (and it is a process) may be extended and one or both spouses would like to date during separation or while a divorce is still pending. We will attempt to answer the question that is posed by first examining what constitutes “adultery” in the State of Texas.
The Risks of Dating During a Separation or Divorce
One important aspect of the definition of adultery is that it must involve a “married” person. During a separation, one is still legally married. A separation does not in and of itself end a marriage legally. And while a divorce is pending, the parties are still married under Texas law. As the Courts in Texas have noted: “Adultery is not limited to actions committed before the parties separated.”
From an observational and practical standpoint, there are attorneys who would say that adultery in and of itself as a sole ground for fault in a divorce, has rarely been enough, by itself, to sustain an inequitable division of the community property. However, it does happen, has happened, and can happen.
When you are separated or your divorce has not been finalized, a sexual relationship with another can legally be considered adultery in Texas.
What is Adultery?
Certainly, most people have an idea of what constitutes adultery. In the State of Texas, while the Texas Family Code does not offer a clearly defined definition of the term “adultery,” we can look to what the common law or what the Court in Texas has defined as the definition of the term “adultery.” One can view numerous blog posts on the internet that cite to Texas Family Code section 6.003 for a definition of adultery. However, that provision of the Texas Family Code does not actually define what adultery is. What it does say we will get to later in this blog post. In Texas, the definition of adultery from a legal standpoint is fairly well settled. Adultery means the “voluntary sexual intercourse of a married person with one, not the spouse.” To be considered adultery, it must meet the following criteria:
- It must be voluntary;
- It must be sexual intercourse;
- The actor must be married; and,
- The act must be with one, not the spouse.
Sure, we could go down a rabbit hole of what-ifs. What if I am married to two people secretly? What if while legally married, I had sexual intercourse with another who I “married” in heart or in a ceremony on the internet? What if it wasn’t “intercourse?” However, we won’t discuss these potential questions in today’s blog. You can get a good answer to these questions by reaching out to one of our attorneys.
What Impact does Adultery have on a Divorce?
Texas Family Code section 6.003, as discussed above, says it best:
“The court may grant a divorce in favor of one spouse if the other spouse has committed adultery.”
One important aspect of this definition is that it contains no limitation on time. That means that it is legally possible for a divorce to be granted in favor of one spouse if the other spouse committed adultery at any point in the marriage. The impact that adultery has on divorce is that the innocent spouse could be granted an inequitable proportion of the marital estate. In a divorce, the marital estate or community property is divided equally between the parties. This is generally considered to be an even division of the property. However, if the Court finds adultery it could potentially award one of the parties more of the community estate than the other party.
How Dating During This Time Can Affect Finances
Expect your finances to be under a microscope during a divorce. Your spending habits, living expenses and liabilities can all be scrutinized for the purposes of dividing marital property and determining financial support.
If you spend a lot of money on new partners, travel to see them or pay for them to come to see you, your ex may take issue with that and demand more money than they would otherwise.
Further, dating before a divorce is final could also make your ex less willing to negotiate. Thus, you could wind up in a contentious court battle, costing even more money.
How It Can Affect Your Children
Seeing their parents divorce can be hard enough for children as it is. And while eventually, they may be ready to see their mom or dad with someone else, dating before the divorce is even finalized can be painful for children. Consider this carefully before dating, as the toll it takes on your children could be far more significant than you expect.
For example, if there is any question about the person that you’re dating and whether it’s safe for the child to be around them, this could have an effect on visitation and custody. Unfortunately, if your divorce is particularly contentious, it’s not out of the realm of possibility that the other parent may attempt to make a mountain out of a molehill and use this as leverage to get custody.
You should also be aware that the Texas courts value stability for the children, so if a dating relationship becomes serious and is going to clearly have an immediate effect on the children, the court may take this into consideration in various ways. It may simply make you look bad as if you are not thinking about your children above all during this difficult time. You should absolutely refrain from moving in with anyone or allowing them to move in with you until the divorce is final.
Of course, there are exceptions. If a parent was toxic, abusive, or absent during the marriage, it could be easier for children to support the other parent’s pursuit of happiness.
Always Talk to Your Attorney
If you are facing a situation that involves adultery on your part or on the part of another – you need to speak with an experienced lawyer. The lawyers at the Skillern Firm Divorce & Child Custody Lawyers, led by Board Certified Attorney Matthew A. Skillern, can help you navigate this issue and answer any questions that you may have. If you would like to speak to someone about your particular situation, call our office at (832) 688-6606. We are here to help you as we have helped many others.
* At Skillern Firm Divorce & Child Custody Lawyers, we pride ourselves on the results we have achieved for those we help. We stand ready to assist you with any of your Family Law needs. Contact us today. https://skillernfirm.com/
