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.
As a Texas family law attorney for my entire career I have seen client after client be surprised by how the Texas Family Code requires that property be divided in Texas divorces. Most clients have heard that Texas is a community property state. While this is correct most people misunderstand what that means.
Texas Family Code Gives Court Broad Discretion in Property Division
Clients will say that they already know that since Texas is a community property state the property will be divided 50/50. The reality is that while Texas is a community property state, unlike many other community states the community property is not automatically divided evenly between the parties. The Family Code requires the trial court to divide the property in a “fair and just” manner. If you ask a qualified Austin family law attorney what this means they will tell you that a separate statute gives the court a list of factors that it can consider in making a disproportionate division (meaning that one side gets more than the other, such as 55/45).
The factors are many but the one that factors in most often is disparity of earning capacity. When one spouse makes significantly more than the other the court will often give the spouse with the lower earning capacity a larger share of the community property. The reasoning is that if the court were to make an equal division at the time of divorce it wouldn’t be equal for very long, due to one spouse greatly out earning the other spouse for a few years after the divorce.
Other factors courts can consider in dividing community property in a divorce include (but are not limited to) needs of the custodial parent, amount of separate property a spouse has, and fault.
Most Common Factor in Disproportionate Division: Income Disparity
A very common scenario that occurs in divorces is for the couple to consist of a primary breadwinner (frequently but not always the husband) and a spouse who works part time or not at all and is primarily responsible for taking care of young children. In this situation a court is likely to consider a disproportionate division in favor of the custodial parent. Part of the reasoning behind this is that being primarily responsible for raising children is likely to reduce one’s ability to advance their career and earn a high income.
Another Factor in Property Division: Amount of Separate Property
Another factor that courts can consider in deciding whether to make a disproportionate division is how much separate property a spouse has. Let’s use as an example a couple who got married at the time of marriage one of the spouses had a million dollars of separate property while the other spouse has no separate property. The marriage then created $200,000 of net community property for the court to divide at divorce. The court may very well consider making a disproportionate division in favor of the spouse who has no separate property.
Fault Can Also Play a Role
Lastly, the court can consider fault as a factor in making a disproportionate division. While fault does have an impact in some cases, it is far less frequently a significant factor in a disproportionate division than disparity of earning capacity or some of the other more commonly applied factors.
The main point here is that while Texas is a community property state that does not mean that the community property will be divided 50/50 in a divorce and there are a lot of variables that need to be considered. This is just another in the long list of reasons why everyone going through a divorce needs to be represented by a knowledgeable Austin family law attorney.