Adultery can have a devastating effect on the wronged spouse and on a marriage. When adultery leads to a Texas divorce, the wronged spouse has the option of raising the issue of adultery in the divorce or allowing the divorce to be granted without fault.
Texas recognizes no-fault divorce, but also still has fault-based grounds for divorce. A Texas divorce court may either grant a no-fault divorce upon a finding that the marriage is insupportable due to discord or conflict or it may grant a divorce based on fault for certain reasons, such as cruelty or adultery. The court has the discretion to determine whether the divorce will be granted on insupportability or fault-based grounds. Even if there is uncontroverted and sufficient evidence of adultery, the court has the discretion to grant a no-fault divorce. The presence of adultery in the marriage, therefore, does not necessarily mean that the divorce will be granted based on adultery.
Although divorce can be granted without fault, there can be benefits to obtaining a divorce based on the other party’s fault. A finding of fault can have a significant impact on property division and in some cases can also affect custody.
Property Division
A spouse may seek a disproportionate share of the community estate when the other party is at fault for the divorce due to adultery. In all divorce cases, the court must divide the estate in a “just and right” manner. The court has broad discretion in dividing the estate and may consider fault in determining what is equitable. As long as there is substantive and probative evidence supporting the decision, the trial court does not abuse its discretion in awarding a disproportionate share of the estate to the spouse who was not at fault. If the adultery was not recent, however, the court may find it is not relevant to the property division.
The wronged spouse may also have a claim for waste of the community assets or fraud on the community estate if funds from the community estate were used in support of the affair, such as to pay for trips or presents. In the event of fraud or waste, the court may reconstitute the marital estate to account for those funds that should have been part of the estate but were not available due to one spouse’s wrongdoing. A spouse alleging waste or fraud will need evidence showing community assets were given to or spent on the other person without the wronged spouse’s knowledge or consent. Obtaining this evidence may require discovery and an in-depth investigation of the marital finances.
The property division will be based on the specific facts of the case. In some cases, especially where there is cruelty in addition to adultery, the wronged spouse may be awarded a disproportionate share of the estate.
Custody
A court’s primary concern in a custody determination is the best interests of the child. In many cases, adultery will not have a significant effect on custody or visitation. However, if the adultery has had a negative impact on the child in some way, especially if the child has been aware of the infidelity and introduced to the romantic partner, it may affect custody or visitation. Additionally, in some cases, the court may issue orders addressing if and when the child may be introduced to or spend time with the parents’ romantic partners, based on the child’s best interest.
Act Now
If you are facing divorce from a cheating spouse, an experienced Texas divorce attorney can help you protect yourself. Call McClure Law Group at 214.692.8200 to schedule an appointment to talk about your case.