In Texas, a court may grant a “no-fault” divorce if the marriage has become insupportable due to “discord or conflict of personalities. . .” Tex. Fam. Code § 6.001. The court may also grant divorce in favor of a spouse, if the other spouse committed adultery. Tex. Fam. Code § 6.003. In a recent case, a former wife appealed her Texas divorce decree, which was granted on the ground of insupportability instead of adultery.
According to the appeals court, the parties got married in 2014 and the wife petitioned for divorce in 2022. She alleged insupportability and adultery by the husband as grounds for the divorce and sought a disproportionate share of the community estate. In his counterpetition, the husband alleged insupportability and sought an equal division of the community estate.
Trial
At trial, the wife testified she made more than $100,000 per year in the military but was now receiving about $88,000 from retirement and disability benefits. She said that the parties generally maintained separate finances and separate bank accounts during the marriage, but she primarily paid the bills out of her own account and was reimbursed by the husband for his share. They also had a joint account for bills.
The husband initially moved out in June 2021, but the parties briefly reconciled and he moved back in September. They sold their home in October 2021, in preparation for a move to Florida. They equally divided the proceeds from the sale. The wife testified she sold a rental property she owned before the marriage at the husband’s urging. The husband also sold a home he owned. The wife testified she was not able to relocate to Florida because of her retirement and the parties ultimately separated again.
The wife testified the husband had at least two affairs while they were married. She also acknowledged that caring for her mother and son, who she said were her dependents, played a role in their marital difficulties. The husband questioned their dependency in cross-examination, and the wife testified that the son was 27 years old and did not live with her and that her mother had her own apartment and vehicle.
The husband testified he had a relationship with another woman during the marriage and was now living with her. He did not dispute telling the wife to sell the rental property. He agreed the wife was responsible for paying the bills, but stated she gave him a list of the bills each month and he reimbursed her for his half. He testified she used the money he gave for her own personal expenses.
The trial court granted the divorce on the ground of insupportability and ordered an equal division of the community estate.
Appeal
The wife appealed, arguing the trial court abused its discretion in granting the divorce on insupportability when the husband had committed adultery. She also argued the court abused its discretion by denying her request for a disproportionate property division in light of the husband’s adultery.
Ground for Divorce
The appeals court noted that both Tex. Fam. Code § 6.001 and Tex. Fam. Code § 6.003 use the word “may,” making them discretionary. Additionally, the appeals court cited numerous cases showing the trial court has discretion to grant the divorce based on either insupportability or adultery when there is evidence of both. The appeals court noted there was evidence of a substantive and probative nature supporting the ground of insupportabilty. The husband admitted adultery, but the wife also admitted that her familial relationships were partly responsible for issues in the marriage. She had also testified the parties had “ups and downs,” had been to counseling, and had unsuccessfully tried to reconcile. Additionally, they had both pleaded insupportability as a ground for divorce. The appeals court found no abuse of discretion in the court’s divorce on the ground of insupportability.
Property Division
In Texas, a court has broad discretion to order a property division in a manner it deems just and right. Tex. Fam. Code § 7.001. The appeals court noted a court is not required to award a disproportionate share based on the other’s spouse’s adultery.
The appeals court also concluded there was evidence of a substantive and probative nature supporting the equal division. The wife paid the bills, but the husband reimbursed her. They each used half of their VA loan to buy the home and they shared the proceeds from its sale equally. The appeals court determined the wife had not shown that the property division was so disproportionate and unfair as to constitute an abuse of discretion.
Seek Legal Advice
While adultery can be a ground for divorce, the court has discretion. As this case shows, adultery is not necessarily a reason for a disproportionate share of the estate, but a court may consider it. If you are facing a divorce involving adultery, an experienced Texas high-net worth divorce attorney can help. Set up a consultation with McClure Law Group at 214.692.8200.