Adultery is a Statutory Grounds for Divorce in Texas
The Texas Family Code has long held that adultery is a grounds for divorce. See Section 6.003 of the Texas Family Code. Its use as a grounds for divorce has become far less significant since Texas became a no-fault divorce state many years ago. Nonetheless, it is frequently pled as a grounds for divorce and a judge can find that the grounds for divorce was adultery, not the much more commonly used irreconcilable differences.
Adultery Can Have an Impact on Property Division in a Texas Divorce
The Texas Family Code also provides that the court can consider fault in the divorce in dividing property. See Section 7.001 of the Texas Family Code. This gives the court the authority to make a disproportionate division if it believes that one side was more to blame for the divorce than the other party. Consequently, adultery can be a factor that leads to one spouse being awarded more property in the divorce case. How much of an impact it makes in any given case is highly dependent on the specific facts of the case and the predilections of the judge. To some judges affairs are a significant factor in a divorce case, to others they are more a symptom of an unhealthy marriage.
Adultery Generally Does Not Impact Custody or Access to Children
While affairs can have an impact on property division, they generally have no impact on custody or access issues. The court’s determination of custody and other access provisions are still governed by the overriding principle of “best interests of the children” as well as a number of specific statutes in the Family Code.
Thus, adultery is typically a non-issue in a custody case with one major exception. If the affair occurred or is ongoing in some way that the court deems to be harmful to the children, this can have a major impact. An example of this would be having the children in the presence of the paramore (boyfriend or girlfriend) prior to the divorce being finalized.
Adultery Can Complicate a Divorce and Create Hostility
So far we have discussed the specific legal issues in detail, but in my experience the practical implications of affairs on a divorce case are often much more impactful. I personally have seen many cases that initially appeared to be relatively calm, civil divorce cases that look like they would be resolved amicably turn into contentious, ugly battles after one spouse learned of an affair. This is especially true when that spouse believes that their marriage was “broken up by this homewrecker” and that there was nothing wrong with their marriage until the affair occurred. Situations like this can cause a divorce to turn into a lengthy, expensive nightmare of a battle.