Although Texas has recognized no-fault divorce since 1970, it also still recognizes fault-based divorce on grounds including adultery, cruelty, and conviction of a felony. Proving an at-fault ground for divorce can affect property division, spousal maintenance, and other matters in a divorce.
A spouse seeking divorce based on adultery must prove by “clear and convincing” evidence, beyond just suggestion and innuendo, that the other spouse had sexual intercourse with someone else during the marriage. Evidence may include text or email messages, phone records, photos, or financial records. Adultery can occur at any point during the marriage, even after the spouses stop living together.
Property Division
The court in a Texas divorce must divide the community estate in a “just and right” manner. A court has broad discretion in formulating a just and right division, and may consider a number of factors in doing so. One of those factors is fault in the breakup of the marriage. A spouse alleging the other committed adultery may therefore seek a disproportionate share of the community property based on the alleged affair.
In some cases, a spouse may claim fraud or waste of the community estate based on the actions of the unfaithful spouse. An unfaithful spouse may go on trips, buy expensive presents like jewelry or vehicles, or even give money to their affair partner. If the unfaithful spouse depletes the community estate by buying expensive gifts or secretly transfers community funds or property, the fact finder may determine that they committed waste or fraud on the community estate. Upon a finding of actual or constructive fraud, the court will determine how much the community estate was depleted and reconstitute the estate. It will then divide the reconstituted estate in a just and right manner between the parties. The court may grant any necessary legal or equitable relief to make the just and right division, including a disproportionate share of the community estate, a money judgment, or both. Tex. Fam. Code § 7.009.
Spousal Maintenance
Although adultery alone does not determine if a spouse will be awarded spousal maintenance, it is included in the factors a court must consider in determining alimony. Pursuant to Tex. Fam. Code § 8.052, a court must consider certain factors to determine the amount, duration, and nature of a spousal maintenance award. Marital misconduct, specifically including adultery, is one of the factors. Another factor that must be considered is whether a spouse’s actions resulted in excessive expenditures, concealment, or fraudulent disposition of community or other shared property. Excessive spending or hidden or fraudulent transfers related to an affair could affect a spousal maintenance award.
Call a Dallas Divorce Attorney Today
If you believe your spouse is cheating and want a divorce, the skilled Texas divorce attorneys at McClure Law Group can work with you to determine if pursuing a divorce on the ground of adultery is right for you. We can also work with you to determine if you may have a viable claim for waste or fraud on the community and identify the records needed to prove it. Call us at 214.692.8200 to schedule a consultation.