What can be used against you in a divorce?

Even a relatively simple divorce can become contentious depending upon the type of evidence that is relevant to the case. As I’m sure that you could imagine, there is a wide range of information, physical evidence, and circumstantial evidence that may become relevant to your case. Your job is to minimize the opportunities for your spouse to discover this information about you and to inform your attorney of those instances that may be discovered by your spouse. It is not easy to disclose sensitive information like this to your attorney, but your lawyer should find out from you than from their opposing counsel.

Today we are going to discuss the types of information and evidence that may be used against you in your divorce. The old saying that “all is fair in love and war” is twice as true in a divorce. This type of case involves two people that used to be in love with one another and the divorce that turns that relationship into a type of conflict. The degree to which you can call your divorce a “war” depends upon the circumstances of your case and the willingness of you and your spouse to sling mud at each other when working together and compromise may cause the case to turn out better for both of you.

Questions about the material that we are going to share with you should be directed to the experienced family law attorneys with the Law Office of Bryan Fagan. Our team of lawyers has seen just about everything that a family attorney can encounter. You can use that experience to your advantage in whatever circumstances you are facing in a divorce. A free-of-charge consultation with our attorneys is available to you six days a week in person at one of our three Houston area locations, over the phone, and via video.

What are your habits with money?

Money and personal finances are a big issue in many if not most divorces that we encounter at the Law Office of Bryan Fagan. The trouble with personal finances is that they don’t have to be difficult but often are. We see this, especially in situations where people are unable to control their spending and lifestyle choices. Personal finances are 80% behavioral choices and only 20% about knowledge and application of knowledge. If you can control the person that you look at in the mirror when you’re brushing your teeth you can control your finances. However, any one of us will tell you that self-control is difficult. We see that in our children but can just as easily see that in ourselves.

When you spend money unwisely in your marriage there is almost always a paper trail that can lead from the source of your expenditure to your pocketbook. There is no fooling anyone anymore when it comes to spending money. Credit cards, loans, gambling, and addictions of various sorts- are all traceable. Financial irresponsibility can be an important factor in a divorce. If you have a history of improperly using martial funds in any way, then this is something that can be used against you in your divorce.

This is known as marital waste or wasting of community assets. Taking community property and spending it on anything that is not geared towards a need of your family or something that you and your spouse have mutually agreed to purchase is known as community waste. Let’s walk through some examples of community waste and how they may be exhibited in your divorce. Maybe some of these examples will jog your memory so that you can review your spending habits to determine if you may be found to have spent money irresponsibly.

The most dramatic example of marital malfeasance with money is if you were to spend community resources on a boyfriend or girlfriend. Physical relationships often lead to actual, romantic relationships. Purchasing this other person gifts, vacations, meals, or even loaning them money are examples of how you could waste community resources on someone who is not your spouse. Again, no matter how slick you think you’re being there is no way to effectively hide this money that is being spent. If you attempt to cover your tracks during a divorce a judge can punish you for attempting to hide your wrongful deeds.

Once it becomes clear that a divorce is imminent, the thought may have crossed your mind to try and transfer money from a bank account you own to another person or a new account in your name. This is not anything new. People who went through divorces have attempted similar moves for years. Just like we have seen in the example regarding extramarital affairs and wasting of community property this is a step that you could take that certainly can be used against you in a divorce. Just because you are going through a divorce does not mean that your income is now 100% your own. Texas is not a state that has a legal separation statute on the books. This means that until a judge signs your final decree of divorce your income is still community property.

If you are a small business owner, you are probably the type of person who is always thinking about ways to improve your business or reinvest in the business itself. Hiding community property in your small business may seem like a crafty idea but it is traceable especially if your spouse were to hire a forensic accountant or another professional who can trace where the community property was sent and when it was sent there. Business income should stay within the business itself unless you are pulling money out for your salary. Otherwise, crossing streams in this manner is not a good idea and can be used against you in the divorce.

Some of your community property may be sold because of the divorce. You may own a home, other real estate, vehicles, or another valuable item. If you and your spouse decide that neither of you wants the asset and would instead like to split the cash between the two of you then selling the item is on your to-do list. However, when you sell a community property asset because of a divorce you need to be sure that you are doing so in a way that compels a market value offer from the potential buyer. If you sell a community property asset for less than market value that could be an example of community property waste and something that could be used against you in a divorce.

Finally, we mentioned this factor earlier in today’s blog post, but I think it merits mentioning it again here. If you have an addiction, then that addiction and the monetary consequences of it will almost certainly be used against you in the divorce. If you ask an expert in this field, he or she will tell you that it is difficult to make it through an addiction and maintain control of your finances. It does not matter what the addiction is, the chances of you spending every dollar you own on that addiction is almost a certainty. If you have an addiction history that has resulted in your wasting community property assets to pursue that addiction, then you should prepare for this to be an issue in your divorce.

What are you doing with your income?

It is not difficult to tell when money has been moved around out of a savings or checking account. Your spouse may not immediately know where the money has gone but he or she will be able to tell that money has been moved for some purpose. The next step is for your spouse to ask you what you spent the money on. If you are not willing to give them that information, then you can expect the money issue to become a large part of your divorce.

Many people assume that if you have a separate bank account from your spouse that the money in that separate bank account is your property separate from that of your spouse. Not so fast, my friend! The community property laws of Texas spell out specifically what forms of income are counted as community property, and which are not. Most forms of money coming into your bank account(s) during a marriage will be counted as community property. This means that you should not expect that just because the income from your 9-5 job was never deposited into a bank account that shares your spouse’s name that it will be your property separately. You can run, but you can’t hide from these community property laws.

Any degree of waste in your community property can be tracked down through financial documents as well. Think about loans for your small business that you may have taken out in your spouse’s name and without their permission. Many people think that if you own a business that ultimately the business is responsible for those loans. In a pinch, you can always file for bankruptcy and avoid liability, right? Wrong. Very few businesses are made loans based on the history and predictability of that business. Rather, you as an individual are held liable for the loans you are issued by a bank or other creditor. Large corporations could obtain a loan or financing for some purpose, but your small landscaping business is unlikely to receive the same treatment.


We have already discussed how infidelity can sometimes lead to the wasting of community assets and how this can be used against you in the divorce. However, the actual relationship or acts of infidelity themselves can also be an issue for you in the divorce. Most people have a desire for companionship on some level. After all, that is a big reason why many of us have chosen to get married. However, as your marriage teeters and fails then you may ultimately seek a relationship, companionship, or another type of arrangement outside of your marriage. You reason that this is ok if your spouse and children don’t know. After all, you’re going through a tough time, and finding a romantic interest along the way may be the silver lining on an otherwise dark cloud.

This is a bad idea, which may verge on a very bad idea. Remember that in Texas there is no concept like legal separation which you will find in some other states. Rather, in our state, you are married until the judge says that you are not. There is no in-between here. If you are married the court will expect you to not date or engage with another person in a relationship. It can be difficult and seem pointless in a lot of ways but that’s the way things are.

Dating or entering a relationship during the divorce will harm your chances of achieving many goals you may have had for your case. It displays bad judgment for one. Your children may find out about this relationship and become confused among other emotions. Depending upon their age you may find that your children understand the situation well enough to start to resent you. Remember that your spouse may be someone that you feel no affection for any longer, but to your children that is their mother or father that you are shunning in favor of another person. This is a factor that won’t be explicitly used against you in the legal proceedings but on an emotional and relational level, your children will almost certainly use the infidelity against you.

The bad judgment shown in entering this type of relationship before your divorce is finalized can hurt you in the eyes of a judge. If you use bad judgment regarding issues like dating, then how you can be expected to show good judgment when it comes to making decisions for your children? This may seem like a stretch- and in some cases it is- but these are realities that can and will impact your divorce. The worst example of how this type of situation can hinder you when it comes to child custody matters relates to your new girlfriend or boyfriend being used against you in determining how often you can see your children. If you have had a long-term affair during the marriage with this person, and he or she has a sordid past then this will impact how frequently a judge allows you to see your children in a possession schedule.

Social media, email, and text messages

Your digital behavior will certainly impact your divorce. The extent to which you spend time online, sending text messages, and responding to emails will determine your level of exposure to potential liability in these areas. Social media is an especially dangerous area for potential negative evidence in a divorce. We feel comfortable saying things online that we would never say to another person in the real world. Additionally, many acts of infidelity start with a simple social media message.

What seemed like a completely normal type of post on social media can wind up being used against you during your divorce. There are limitless possibilities as to what could be used against you in a divorce. Consider that photos posted, opinions shared, comments made, and things of this nature can all be found without much effort when it comes to your social media behavior. Even if you had deleted something online these posts and writings tend to come back and bite you in the rear end.

Your spouse’s attorney will almost certainly conduct some type of research on you when it comes to your online behavior. You can check your profiles and accounts to control who has access to your social media accounts. Talk with your attorney before deleting posts or even deleting accounts. This can result in the spoliation of evidence and may be against the rules when it comes to your divorce. Overall, it may be a good idea for you to ease off social media during the divorce. You can always pick back up where you left off when the divorce is done and over with.

Last, if you do have “skeletons” in your closet that have been brought to your attention because of reading this information then you should not hesitate to do something about it. Speaking with an experienced family law attorney about what is happening in your case is a good place to start. The earlier you do something about it the better off you will be. Trying to hide bad behavior or avoiding discussing something unpleasant will not benefit you. It can and likely will be used against you in a divorce.

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