Community Property
A big part of the divorce process is determining how to divide all real estate, personal possessions, financial assets, dividends, benefits, and debt. Texas is a community property state, which means that most of the property held between spouses is legally shared. Exceptions include property acquired before the marriage, inheritance, and gifts given exclusively to one spouse.
When a couple divorces, courts are instructed to order a “just and right” division of the assets. In the case of a no-fault divorce in which both parties are able to support themselves, that might mean an equal division. However, courts consider the need for child support, whether or not one spouse qualifies for alimony and any grounds for an at-fault divorce. When any of these issues factor into the divorce, a “just and right” division might mean that one partner gets a greater share of the community property.
Can an Affair Change How Property Gets Divided in a Divorce?
Yes. When finalizing a divorce, courts can consider marital misconduct, including extramarital affairs. This can result in an unequal division of property, with the offender walking away with less than half of the community assets. Additionally, if the offending spouse qualifies for alimony, the affair might impact the amount he or she receives each month.
Adultery is a leading cause of divorce across the United States. In Texas, adultery is grounds for a fault-based divorce. This means that not only can cheating be cited as the reason for the breakdown of your marriage, but it can also affect many elements of the divorce process and subsequent outcomes.
If adultery is proven to the court during a divorce, a Judge could favor the division of marital property towards the non-cheating spouse.
Both proving and fighting divorce allegations in Texas divorce court can be challenging. The impacts of an at-fault divorce on the final settlement can be substantial. As such, proving or objecting to allegations of adultery should not be taken lightly.
Spousal Support
The Texas Family Code outlines complex criteria that a spouse requesting spousal support must meet to be eligible for support payments. These criteria are predominantly based upon an individual’s ability to earn enough to meet their minimum reasonable needs. As such, there is no guarantee that spousal support will be awarded in a Texas divorce. However, if awarded, some elements of adultery could affect the payments that a Judge could allocate.
For example, a Judge will consider either spouse’s excessive spending or destruction of community property during the marriage. If a cheating spouse spends substantial marital funds on an extramarital relationship, this could influence spousal support.
How Does an Affair Affect Alimony?
Alimony, also referred to as spousal support, is the amount of money one spouse might be ordered to pay the other each month. To be eligible, the receiving spouse must prove that they have a reduced capacity to provide for themselves, that they are caring for a minor child who is disabled, or that they experienced domestic violence within two years of the divorce.
Extramarital affairs are not considered when determining whether or not one spouse is eligible for alimony. However, they can factor into the amount the offending spouse is ordered to pay, especially if the affair coincided with any domestic violence. On the other hand, if one spouse is eligible for alimony, that right might be waived if he or she had an affair.
Child Custody
A common question for couples going through a fault-based divorce is will adultery affect child custody? This can depend on the specifics of the circumstances involved, but it is possible that a spouse’s infidelity may impact a Judge’s child custody decisions.
The courts will always aim to award child custody based on the child’s best interests. Most Judges will act upon the belief that it is important for a child to have a relationship with both of their parents and award custody accordingly. However, in most at-fault divorces, a spouse’s behavior can be taken into consideration in custody proceedings. Adultery specifically will not always influence proceedings, and many factors determine how adultery affects child custody. However, a parent’s behavior or new relationship could affect how custody is awarded.
If a parent shows a persistent behavior of prioritizing relationships with other people over their child’s best interests and spending time with them, this could go against them when deciding custody. Similarly, a Judge may favor awarding custody to the non-cheating spouse if the other parent’s infidelity could have a negative impact on a child. This may include behavior such as inappropriately introducing a child to new partners, a new partner that poses a risk to the child, or if the infidelity occurred either in front of the child or with their knowledge, resulting in potential emotional trauma.
In addition, children over the age of 12 are permitted to speak to a Judge in person to discuss their preference for custody arrangements after the divorce. Although a child’s preference will not be the sole influence in custody proceedings, a Judge may still take their preference and opinions into consideration. If a child is aware of a parent’s adultery during the marriage, this may impact how they feel about each parent and their subsequent preference for custody arrangements.
Proving Adultery In A Divorce Case
Conjecture and suspicion are insufficient for adultery to be considered in divorce proceedings. It must be proven to the court that a spouse committed adultery with substantial evidence and testimony. An alleging spouse does not have to provide direct proof of adultery, but circumstantial evidence is beneficial to support a claim of marital misconduct.
The definition of an affair
In Houston, TX, divorce proceedings are worked out according to the Texas Family Code, which gives a vague definition of adultery. However, courts generally accept that voluntary sexual contact with a person other than your spouse is adulterous.
The timing of an affair
When facing divorce, many people make the mistake of starting a relationship before the disillusion is finalized. As long as you are still legally married, your partner can sue you for adultery even if you have already begun the divorce process together. That is one reason to speak with an attorney early on. He or she can make sure you are informed about how your behavior during the process will affect the ultimate outcome.
Proving the affair
Filing an at-fault divorce based on an affair requires proof. The court will not allow the proceedings to progress on the basis of “he said/she said” arguments. However, your spouse does not need to submit footage of the actual affair taking place. It is enough to provide circumstantial evidence including:
- Phone calls
- Emails
- Receipts from restaurants, gifts, or trips
- Witness statements
It is important to note that if the evidence your spouse submits shows money being spent on the affair, the total amount could be deducted from your share of the assets. In addition to funds spent on vacations and gifts, courts will consider whether you have provided a home or a car for your extramarital partner.
What Is A Fault-Based Divorce?
A fault-based, or at-fault, divorce relies upon the concept that one spouse’s wrongdoing or misconduct is the reason a marriage broke down. Texas family law acknowledges four fault grounds for divorce: cruelty, adultery, abandonment, and felony conviction. If filing for a fault-based divorce, the alleging spouse must prove the other’s spouse’s marital misconduct to the court. If successful, the at-fault spouse’s behavior can be taken into consideration when determining the final divorce settlement.
Alternatively, a no-fault divorce in Texas allows couples to file for divorce without claiming that either spouse’s behavior is the cause of the relationship breakdown. A couple can cite three potential grounds for a no-fault divorce in Texas: Insupportability sometimes referred to as irreconcilable differences, living apart, or confinement to a mental hospital.
At-fault vs. no-fault
In Texas, most divorces are no-fault, meaning that neither partner committed immoral actions which led to the dissolution. This option is popular because it is faster and more amicable. Accordingly, the process of finalizing a no-fault divorce incurs fewer legal fees. Divorcing couples will still need to demonstrate a reason for the divorce, such as:
- Separate living arrangements
- Irreconcilable differences
- Confinement of one spouse to a mental health facility
Adultery is grounds for at-fault divorce, meaning that the court could decide that the affair in question ultimately caused the end of the marriage. In that case, you might be ordered to forfeit a disproportionate share of the assets. Other reasons for an at-fault divorce include cruelty, abandonment, and felony convictions. If your partner has accused you of being on the offending end of an at-fault divorce, he or she will need to submit proof.
Do I Need An Attorney For A Divorce Involving Adultery?
Whether you are accusing your ex of adultery during your divorce or you are being accused of an extramarital affair, likely a lawyer will be crucial to your case. Both proving adultery and disputing claims of adultery against you can be challenging, and your ex will more than likely secure legal representation to aggressively fight their case against you.
If proven during a divorce, an extramarital affair can affect many aspects of life for spouses and their families and have long-lasting implications. To build the strongest case possible and fight for your rights in the courtroom, seek advice from a skilled attorney as soon as possible in your divorce.
Once you have legal counsel, your attorney can start work to collect evidence and testimony to support your argument and develop a strategy to give you the best chance of a successful outcome.
Dispute Resolution Methods
Infidelity can trigger numerous difficult emotions and communication obstacles. Non-cheating parties can feel wronged and unwilling to negotiate, while adulterous parties can feel ashamed and scared.
If either party is unwilling to communicate, options like mediation or collaboration may be all but impossible. On the other hand, seeking as swift of a resolution as possible through mediation or collaboration could minimize the embarrassment, and make it easier for each party to go their separate ways.
Negotiation
Most divorces end in a settlement, rather than a trial. Your lawyer can handle communications between you and your spouse as you negotiate your division of assets outside of court. Having a lawyer will show your spouse that you are serious and will not give into baseless accusations.
Litigation
If your case does go to trial, your lawyer will strengthen it with a nuanced understanding of family law. He or she will ensure that all documents are filled out according to the guidelines and that all evidence submitted meets legal requirements. Throughout the trial, your lawyer will provide professional legal representation, using convincing arguments in your favor and coaching you on how you should appear before the court.
