What affect can adultery have on a divorce in Texas?
While I don’t have any statistics on the subject to provide you all
with, my gut feeling is that
infidelity among spouses is more prevalent today than even ten years ago. Maybe this
is a result of people losing touch with religion (a trend that can be
backed by studies and statistics) and becoming more comfortable with rationalizing
their decisions. It could be that due to technology, cheating on your
spouse is just simply easier than it has been in prior years so that along
has led to an increase in marriages failing because of infidelity.
I didn’t go down this line of thought to be judgmental or to use
this blog post as a means to preach a “holier than thou” message.
My thought in writing about this subject is purely that infidelity as
the cause of the breakup of a marriage is highly relevant and something
that many potential clients and clients of the
Law Office of Bryan Fagan will ask questions on. If you’re like most people, then what you
want to know if what sort of impact can infidelity have on your
divorce case? This blog post will discuss considerations to make in your own life
if infidelity has led to a decision to file for divorce from your spouse.
Adultery as a “fault” grounds for divorce
Texas, along with many other states, allows you to file for and be granted
a divorce from your spouse for no reason at all. Known as a “no fault” divorce, it is the most common reason listed for the divorce in
any set of final orders. My favorite thing to tell potential clients in
consultations is that you can get a divorce for a reason as silly as not
liking the way that your spouse chews their dinner.
On the other end of the spectrum, however, are what are referred to as
fault grounds of which infidelity/adultery is one.
Adultery does not mean simply having impure thoughts or flirtatious activity with
an adult other than your spouse, however. Adultery as it is applied in
divorce cases means that your spouse and another person engaged in sexual
activity together while your spouse and you were still married. If you
suspect that your spouse has been unfaithful to you it would follow that
you would do whatever you could to determine if your suspicions are correct.
As it turns out, a little digging is essentially to proving your adultery
allegation to a judge.
Proving adultery in a court of law
A judge will require a clear indication that there has been unfaithful
behavior on the part of your spouse in order to sustain an allegation
of adultery. This means that you can present direct evidence (photographs)
of an adulterous affair or circumstantial evidence (indirect evidence
like suspicious credit card charges or emails) to prove the affair had
occurred. Going into a court room with a gut feeling that your spouse
is having an affair will likely end with your adultery grounds being tossed
out. With this in mind, hiring a lawyer and telling him or her that your
spouse is being unfaithful is not going to be enough. You have to turn
into a detective of sorts in order to uncover evidence and provide it
to your attorney.
How to collect evidence of adultery
The early bird gets the worm as the old saying goes. This is applicable
to our discussion of collecting evidence to use against an unfaithful
spouse in court as well. Without breaking the law (as in, hacking into
an email account) it is wise to begin to collect text messages, phone
records or bank statements that may be able to assist you in showing a
judge that your spouse has committed adultery which contributed in a meaningful
way to the demise your marriage.
Social media, including Facebook, Instagram and Twitter, are all resources that you
can utilize to keep tabs on your spouse and possibly uncover any behavior
that may be worth presenting to the court in your divorce. It is critical
to get to this information as quickly as possible due to the possibility
that your spouse may delete any questionable posts or completely eliminate
their profiles altogether.
Adultery as grounds for your divorce may lead to changes in how property
Perhaps the most important reason for proving a fault ground for your divorce
is that if you are able to convince a judge that your spouse’s infidelity
was the grounds on which your divorce should be based is that you can
win a disproportionate share of the martial property up for grabs in your
divorce. Disproportionate for our purposes means that you may be awarded
more than a “just and right” (50% in most cases) share of
the marital property.
However, simply showing that your spouse committed adultery is not enough
in and of itself. Rather, you must show that you suffered from a loss
of some benefit that a continuation of the marriage would have conferred
on you. A
disproportionate award of the
martial estate in your favor is not intended as a punishment towards your spouse. If
the infidelity occurred and you can’t prove any other loss that
you suffered because of it there is not going to be a dramatic change
in the award of property in your divorce.
The bottom line is that you must show how your spouse’s actions destroyed
the marriage and how that has affected you. An example would be to show
the judge that your spouse
spent money on gifts, food, transportation or other items in furthering his or her
extramarital affair. This places an even heavier burden on you to collect
evidence while you are still able to in order to move forward with your case.
Questions on divorce and adultery in Texas? Contact the Law Office of Bryan
If you find yourself with additional questions after having read this blog
post please do not hesitate to
Law Office of Bryan Fagan today. Our licensed
family law attorneys are available to meet with you six days a week for a free of
charge consultation. We represent clients across southeast Texas and would
be happy to share with you the services our office can provide you with.