An affair could lead to dissipation of marital assets

One of the significant factors that lead to many divorces in our country is infidelity. Marital infidelity can destroy the trust in a marriage and show parties towards divorce as quickly as any other factor that I can think of. While many different factors can lead to a divorce, I believe marital infidelity can be the most damning of those causes. The tricky part of this discussion is that other people have affairs and engage in extracurricular behavior outside the marriage for various reasons. We are not equipped to speculate as to why this may occur or how to prevent it, but what I would like to do is talk to you about how an affair can impact your divorce.

It used to be that, to get divorced, you would need to specify a specific reason or fault grounds. This was the case because states wanted to make it as difficult as possible for you to get divorced. There was a public policy motivation to keep people in their marriages and prevent families from breaking up. There is less an emphasis on personal fulfillment than contentment and more on maintaining family structures and the nuclear family. Only time will tell whether our modern societies’ more permissive views on divorce or our parent’s and grandparents generations views on divorce would be more beneficial.

In 2020, all you and your spouse have to do to get divorced would be to specify that you have irreconcilable differences with no hopes of salvaging the marriage. A discord or conflict in personalities sets the tone and presents the court with a nonspecific reason why you need a divorce. I will often tell clients and potential clients of the Law Office of Bryan Fagan that you can get a divorce for something as serious as marital infidelity and for something as not serious as not liking how your spouse choose their dinner.

The decision to get a divorce impacts multiple areas of your life. In a general sense, the two most essential areas are areas with your children and rooms having to do with your finances. Specifically, you and your spouse will be charged with figuring out how to divide your community estate and divide up time with your kids. If you are a parent, you will most likely be much more concerned with how time with your kids is divided than how your property is divided. I can’t recall a single parent I have ever worked with who was more concerned about how their property was divided than how their time, rights, and duties with their children were divided up between spouses.

However, today we’re going to focus on property division in a divorce and the impact of marital infidelity on that process. First, we will go over what community property is and how it will play a role in your divorce; next, we will discuss infidelity and adultery as fault grounds for divorce. Finally, we will get into How infidelity can impact your property division.

Community property law and divorce in Texas

in Texas, at the time of your divorce, all property is presumed to be part of the community estate. This means that the property that you own will be subject to division. Evidence can be shown that proves certain pieces of property owned before your marriage or your separate property. Still, almost every other amount of property or debt that you own will be subject to division in your divorce. It does not matter who purchased the item, whose income was utilized to buy it, or whose name appears on the receipt or title to the property.

Texas does not draw a distinction between income earned during the marriage based on whether you or your spouse made it. Texas treats most income earned during a marriage to be community property. Therefore property purchased during the marriage with that income is also considered to be community property. You should be prepared for income in a property like this to be divided up during the later stages of your divorce.

A significant difference between Texas and many other states, maybe the United States, is that a Texas family court judge would not look at the spouse who earned the income as the party with the superior right to retain that property in a divorce. You can think of it as a situation involving you and your spouse owning a joint checking account where all income earned is deposited into. Once the payment goes into the bank account, it loses any distinction of being connected to either you or your spouse individually. Instead, the income held in that joint bank account is just as much yours as it is your spouse. It does not matter if you’ve never worked outside the home or if your spouse earns a substantial salary.

In many divorces, community property is divided up in a reasonably equitable fashion. Based on the circumstances of your case, a judge would be likely to assess all individual factors and then weigh them against any other events in your case. Other factors such as the future income earning potential of both spouses, your separate property holdings, your health, your age, and your educational levels are all factors that judges look to when determining how community properties should be divided. You should be aware of any elements in your divorce that may be important and focus on those in preparation with your attorney.

Marital infidelity is a fault ground for divorce.

As I mentioned at the beginning of today’s blog post, marital infidelity or adultery are grounds for divorce in Texas. This means that you can specify that your spouse was not faithful to you in your marriage and that this was the primary factor that led you to force them. While it may feel good to put this language down on paper, I can tell you that it will remain a moral victory for you unless you can somehow turn that evidence into a positive result in your case.

One of the biggest misconceptions that I think people have about adultery and infidelity is that these are automatic winds for you if you mention that your spouse has cheated on you. I like it to a playing card that trumps all other cards and causes you to win the game when played. The reality of the situation is more complex: it is likely less conducive to an automatic win for you than you may believe.

The reason why the adultery allegation may not have much of an effect on your case is twofold. The first reason this is the case is that you may not even be able to substantiate or prove that cheating occurred. For instance, you may have heard that your spouse had cheated on you from a friend or family member, but unless you could provide evidence to a court in a trial, likely, this allegation would never really come to the forefront.

On the other hand, if you can substantiate this position and show that you have been materially harmed somehow, it is much more likely for you that you will be able to specify why. You may need to have the court give you some degree of benefit due to this unfortunate reality. Ultimately this is the real kicker: you need to be able to ask for some relief in exchange for your spouse having stepped outside of the marriage. Otherwise, all you are doing is putting down on paper that they cheated on you while you did not drive any direct benefit from this revelation.

Marital infidelity as a means to win a disproportionate share of your community estate

by introducing the fact that your spouse has cheated on you during your marriage, you will at least present the issue to a judge in a trial. Depending on your circumstances, the impact of that infidelity may be more or less significant. For instance, if your spouse is cheating on you, this is a bad thing; there is no doubt. However, suppose the cheating went to your spouse using community income to buy this person gifts or other items and hurt your family financially. In that case, this can be the critical evidence to gain a disproportionate share of the community estate.

You can view marital infidelity through a couple of different prisms. The first view is that you may be hesitant to move forward with a trial in your case because you know that your infidelity will be coming out in the child. This may cause you to negotiate differently with your spouse and be more willing to bend on issues, but for the infidelity, you have never been willing to bend on.

The other perspective that I would like to consider marital infidelity is that your community estate can be divided up disproportionately. They appear spouse brought their Paramore around her children and was provided with expensive gifts or money then; these are material factors in assessing the affair’s impact on your marriage. In a negative sense, courts look very strongly at parents who bring boyfriends or girlfriends around the parent of the kids. Additionally, courts view spouses who spend money on their paramour’s instead of using that money to benefit the family in a negative light as well.

With all that said, you may be looking at being awarded a disproportionate share of your community estate if a court believes that your spouse’s conduct rises to that level. Again, there is no way to say how strongly a court would view this type of behavior in a negative light. You should be working with your family law attorney to figure out how to approach this topic can proceed if it ends up being a situation where you and your family could benefit from using it as a fault ground for divorce. Do not assume that the adultery accusation will be a silver bullet for your case. You have to plan and be intentional about what context you will use in negotiation and how you will substantiate this allegation if called to do so in a divorce court.

Closing thoughts on marital infidelity and divorce

Helping families get through divorces is what the Law Office of Bryan Fagan does best. Our attorneys balance willingness and desire to be there for our clients in their most challenging times with the experience you need to manage a complex divorce case. We pride ourselves on counseling clients on their tough times while also providing them with practical steps to achieve their goals despite those problems.

No matter what side of marital infidelity you are in, if any within your marriage, it is crucial to have legal representation. An attorney can help you plan near divorce by coming up with practical solutions to your problems and methods for negotiating through them with your spouse. We provide you with unique and personalized strategies for accomplishing whatever goals you have for your divorce. We have been serving our community throughout this pandemic in the same way.

If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are an excellent way for you to learn more about the world of Texas family law and about the services that our while office provides to our clients. I appreciate your interest in our blog posts, and we hope you will join us again tomorrow as we share unique content about the world of Texas family law.

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