Infidelity: What to Look For, What to Do

When it comes to asserting grounds for divorce, infidelity is more common to be cited by Texans. Between problems regarding money and infidelity, I think most divorced people in Texas would tell you that at least one of these subjects was relevant in their marriage. Unfortunately, infidelity is a regularly occurring topic in the world of family law. While I don’t have the background to discuss this topic in terms of psychology, I think there is still an opportunity for us to have a worthwhile discussion on infidelity here on the blog for the Law Office of Bryan Fagan.

I think it is worthwhile to look at infidelity as part of a larger topic known as fault grounds. For many years, to get divorced in Texas, as in every other state, a person had to specify why that divorce was being sought. Many of those same reasons that a person divorcing four generations ago are still available today. Grounds for divorce like living apart, being confined to a mental hospital, cruelty, conviction of a felony, infidelity, and abandonment are possible causes for divorce that you may cite.

These fault grounds individually or in combination would be specified in your original petition for divorce. This is the initial filing document that is filed in a Texas divorce case. The Original Petition for Divorce will introduce you, your spouse, your children (if any), and the claims that you are making to the court. You will be able to state the relief you are seeking from the court (what do you want in this divorce), such as primary conservatorship over the kids or attorney fees from your spouse.

Within that original divorce petition, you have the ability these days to tell the judge that you want the divorce for no reason or for one of the reasons we mentioned a few paragraphs ago. Predictably, no-fault divorces are much more common than at-fault divorces. The main reason for this is that you don’t have to prove anything or provide evidence to assert a no-fault divorce. All you have to do is pay your fee, say the magic words in your petition, and you have filed a legitimate divorce in Texas. It’s probably not much of a coincidence that divorce rates in the united states increased dramatically when no-fault divorce became legal.

After seeing all of this, you may be wondering why anyone would even bother to specify specific fault grounds for divorce. After all, coin if you can still get divorced for saying that there is no specific fault in getting divorced, why’d you do it anyway? Why go through all the trouble when you say you want to get divorced because you don’t get along with your spouse? That is a worthwhile question to ask in one map we will be discussing in today’s blog.

What does alleging a fault grounds divorce petition do for your case potentially?

To be sure, it takes some effort to be able to get a divorce. It is not nearly as simple as talking to a judge and asking to no longer be married. On the contrary, there is a specific set of legal processes involved in getting divorced. We have already talked about how filing a divorce petition is among those first steps. Within that divorce petition will be an opportunity for you to specify while you are filing for divorce. It is up to you whether or not to allege specific grounds. In my experience, there is a reason why you would want to avoid specific grounds for divorce due to a desire for a disproportionate share of your community estate or because you are concerned with how a judge would rule on issues regarding child custody.

When it comes to your community estate general process in Texas, that is the state of being divided pretty much down the middle. That doesn’t mean that every divorce sees property split up the same between two spouses. Still, indeed, absent other circumstances, most of the time, the property is divided up in a fairly equal fashion between two people when they get divorced. Furthermore, it does not matter whose name appears on the title, D, or receipt for a piece of property. It also doesn’t matter whose income was used to purchase the property.

So long as the property was purchased or acquired during the marriage, you and your spouse will be presumed on that property one. This doesn’t mean that you won’t have in your spouse owns half. This means that the law presumes it is owned in equal parts by each of you. You own all of it, and you’re spouse owns all of it. With that said, a big part of a divorce case is determining how your Community property would be divided. And settlement negotiations and mediation, you and your spouse will be tasked with determining how your property should be divided between the two of you.

It is in these discussions where factors like infidelity may play a role. I say that infidelity may play a role because there is no telling exactly how your judge will view the subject in exactly what role the infidelity played in your marriage and eventual divorce. To be sure, I am not trying to minimize what infidelity has meant to your family. Certainly, no active infidelity is justified. However, I am telling you that you may be surprised at how a family law court views infidelity in conjunction with your case.

When it comes to financial matters and your community estate, specifically, a family court would likely be most interested in determining to what extent the infidelity impacted your family from a money standpoint. To put it very bluntly, if your spouse’s infidelity amounted to physical acts that did not impact your family to a large extent other than a permanent emotional standpoint, then a judge may not be these acts as seriously when potentially dividing up your community state. I see these situations happen with some regularity in divorce cases. Here is how some of the circumstances tend to go.

I’ve had many potential clients walk into the Law Office of Bryan Fagan, both men and women, to tell me that their spouse has cheated on them. After going through the circumstances of the case as they see them, the person will almost invariably then tell me that it would make sense for the judge to give them full custody of the kids and a large share of their marital estate. I don’t blame you if you feel or believe this way either. From movies and television, we are led to believe that infidelity alone can sway the direction of a divorce case.

However, the reality is that a judge would look to the extent the cheating had a meaningful impact on your budget before determining how to divide up Community property. If your spouse engaged in something called wasting community assets, you might be awarded a disproportionate share of your community estate. Disproportion it simply means something that is not proportional to the circumstances of your case. Meaning, if the circumstances of your case would otherwise lead to a perfectly even distribution of your community assets, then infidelity allows you to walk out of your case with 55% of the assets.

If a judge were to determine that no substantial wasting of community assets was involved, then the truth is that infidelity may not make a huge difference, at least when it comes to the division of property in your marriage. Another factor that you need to consider is that, more likely than not, you and your spouse will be determining the outcome of your case via mediation. As such, the likelihood is fairly small that your case will even go before a judge. Therefore you should not put all of your eggs into the basket of a judge certainly being the one to make the ultimate decisions in your divorce.

What does all of this mean for you in your divorce case? With the information I just provided you with, I may have caused a fairly significant shift in how you view your case. First and foremost, infidelity is not a silver bullet in your case. Do not assume that your case will be slanted in your favor once your spouse has an affair. The extent of a potential affair that was had will play a large role in how a judge views it in light of the other circumstances of your case. Again, even if you have evidence of the affair, you need to have that evidence admitted into the record.

The other major consideration that you should be pondering at this point is the extent to which the infidelity impacted your children. Quite honestly, this is sometimes the most important factor of all. If the cheating impacted your children by their spouse, you are even more likely to see elements of your case shift in your favor. It is entirely different for your children to be completely unaware of the infidelity versus being made aware of it directly by your spouse.

For example, child custody issues can shift do too if she’s regarding infidelity. Being able to show that you are capable of acting in the best interests of your children is an important factor in conservatorships discussions in a divorce. Having an affair and then exposing your child to that behavior is among the more egregious acts parents commit. But it displays questionable judgment; it also brings into question whether or not you are capable of acting in the best interests of your children. For that reason, I would recommend considering all the elements of your case before getting any ideas about how any infidelity will impact your divorce.

How is a judge likely to view the affair?

All of the foregoing aside, this is the question that you need to be asking yourself. It is your job and that of your attorney to better understand what your judge would likely say in response to evidence that your spouse has cheated on you. Depending on the circumstances, elements of your case, and the judge him or herself, this is a question that could go either way.

The more severe a judge will treat the infidelity means that you can negotiate that much more aggressively throughout your case. Asking for more Community property than you might usually or being more demanding or aggressive in requesting child support or other aspects of child custody would make sense. Overall, you can never anticipate exactly what a judge would view your case about infidelity. However, your attorney will likely be able to guide you better than you could do so yourself without counsel.

One element of this discussion that I did not want to leave out is gaining information legally. I mentioned earlier in this blog post how having evidence of cheating is one thing. Still, it is an entirely different matter to have that evidence admitted into the record. To have admissible records, I would recommend that you make sure that how you obtained evidence of cheating was legal and permissible in the eyes of a judge.

For instance, if you log onto your spouse’s email account without their permission or access their phone to take text messages or other information, it is unlikely that information will ever be able to get in front of a judge or a jury. On the other hand, recording a conversation with your spouse is legal in Texas as long as you or your spouse understand that the conversation is being recorded.

It would help if you went over with your attorney any evidence that you have and how you obtained it. You need to be able to present a clear case to a judge about infidelity. If you are basing your entire case to present this evidence to a judge, the evidence ought to be admissible. It is difficult to make this assessment without an attorney being able to guide you. This is all the more reason to retain an attorney for your divorce.

Closing thoughts on infidelity and its potential impact on your divorce

Being in a situation where you have become the victim of infidelity within your marriage is certainly an unenviable situation. It can be extremely disheartening to learn that your spouse has violated your trust by engaging in an extramarital affair. Sometimes processing the emotional harm associated with the cheating can be enough to take the wind out of your sails when it comes to preparing for your divorce. However, there are some ways for you to panel yourself and your case well if infidelity becomes a factor in your life.

For one, I recommend hiring an experienced family law attorney to represent you in your divorce. This way, you will be well equipped to sort through the emotions, is she’s upper case, and information associated with the infidelity anyway where you can be set up to succeed. As I have mentioned in his blog post, simply telling a judge that you were cheated on does not automatically push the odds of your case in your favor. You still need to have a plan and be able to negotiate well with your Co-parent or spouse.

Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan

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 a great way for you to learn more about the world of Texas family law and how your family circumstances may be impacted by the filing of a divorce or child custody case.

Our attorneys and staff take a great deal of pride in being able to serve our community. We have the honor to represent clients throughout the family courts of Southeast Texas in divorce, child custody, CPS, and other matters related to family law. We also produce unique in relevant content about the world of Texas family law on our blog seven days a week. Thank you for joining us here on the blog today, and we look forward to you joining us again tomorrow as we continue to post helpful particles designed to help guide you and your family.

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