What Effect Does Adultery Have on a Texas Divorce Case

Published October 3, 2012 | By

This post will discuss the legal and practical implications of extramarital affairs on a Texas divorce case.

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.

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Scott Morgan is Board Certified in Family Law by the Texas Board of Legal Specialization. He is has practiced family law since 1994 and is the founder of the Morgan Law Firm which is dedicated exclusively to representing divorce and family law clients in the Houston and Austin areas.

Posted in Custody, Divorce, Parent-Child Issues, Property Division | Taged , , ,

6 responses to “What Effect Does Adultery Have on a Texas Divorce Case”

  1. I found your articles on Facebook and divorce interesting. I suspect my husband may be cheating, but I truly want to wait until there is solid evidence BEFORE I bring in an attorney. Obviously, I think the more leverage I have with him in this regard, the better case I have when it comes to assets down the line: house, kids, etc. I’ll try calling you soon to get perspective in greater detail.

    • Save every bit of evidence you can. Screen grabs. Video. Whatever the case is. The more proof you have, the better, in terms of getting everything you want. It’s like legalized blackmail.

  2. I am trying to find proof of my husband cheating, but so far no good… or at least nothing I can prove yet. I don’t want to let him know that I know. Social media may be a possibility, as I think he has some lady friends on there (but I’m not on there.) What do you suggest I do? I really want to nail him and get out of this marriage with no loss with my assets or the kids.

  3. My wife tried to pull stuff like this into court on me, but her proof seems a bit wishy-washy. Heaven forbid I have female friends. But I’ll make sure she doesn’t get close to her so-called “proof”

  4. Hi there – I’m a practicing Guardian ad Litem for the last 14 years. About 5 years ago I started my own private investigator agency here in Austin specifically dealing with cheating spouses, divorce, and child custody – it’s a rather long story how I came to this but I thought it was a natural progression since I know family law so well and many of the private investigators I dealt with as an ad Litem did not have a good foundation in family law. I wanted to give folks my expertise that I learned from the inside out as opposed from the outside in.

    Anyway I was pleased to see your article because it is something I preach as well – just because Texas is a no fault state does not mean that the property can’t be distributed unequally if one spouse is wrongful in their actions. If it goes to court, the trick at least for us as PI’s is to build a case in such a way that it just might anger the judge to the point to give the innocent spouse a generous settlement. At the very least the innocent spouse might get relief with attorney fees (the offending spouse pays for the innocent spouse’s attorney costs) or perhaps may have a better chance at staying in the family house. Other times, if the judge is really angered by the offending spouse, the innocent spouse just might get more of the property or more of a proportion of the offending party’s retirement fund. Or the judge could provide the innocent spouse with spousal support – needless to say the judge has a lot of options to punish a misbehaving spouse. I’ve seen it, I’ve been there, and it works.

    Yes, of course you are right about the children – the judge has to base his decision on what is in the best interest for the children, however, if argued well, the judge could order that the paramour is to have no contact with the children which I have seen multiple times. Most family law professionals – therapists, judges, Guardians ad Litem, etc know that bringing in a new relationship right after a divorce does bad psychological things, especially to young children. As a Guardian ad litem, I have certainly argued that point. As a private investigator, I am often surprised at the backgrounds of the paramours that offending spouses seemingly often pick. A good comprehensive background check can sometimes be very illuminating which can later be hammered on in court.

    A recent example was a case in which the mother was having sex with her paramour in a gas station parking lot while she left the kids at home. She was 2 blocks away from the family residence. Well, a long story short, the husband’s attorney had a field day with this in court and his client was awarded the kids, the house, and a generous property settlement. The paramour was forbidden to be around the children.

    Divorces are awful but when they happen like this, it at least will take some of the sting away for the innocent spouse to be justified in court. And a little extra money never hurts to make ya feel better.

    Lastly, we have a lot of success in mediation. If done right it can have a powerful affect on the offending spouse to the point that the offending spouse will agree to just about anything to keep this out of court. About the last thing a misbehaving spouse wants is the possibility or implication that the paramour will be subpoenaed to court especially if the paramour is married.

    Anyway, that’s my 2 cents and I sure liked seeing your article outlining what I often tell my clients. Though, private investigation can be a bit expensive, we often pay for ourselves on the back-end of a case by better settlements and a better result.

    Tom Ware, M.Ed. Licensed Private investigator and Guardian ad Litem

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