One of the factors involved in divorce cases that often are thought of as being a bigger issue than it usually turns out to be is adultery. This can come as a surprise given that cheating and infidelity are painful and destroy the bond of trust within the marriage more effectively than probably anything else. When you are cheated on by your spouse it is difficult to not feel betrayed. Your ability to believe that this person has the best of intentions in your marriage is forever dashed. You’ve been violated profoundly and now are left trying to figure out if there is anything worth saving in the relationship.
Despite all these understandable emotions and thoughts about adultery, the truth of the matter is that in most divorce cases adultery does not play a huge role. These days, a judge is not likely to throw the book at a person for having cheated on their spouse. Keep in mind that judges apply the law to a set of circumstances in your case. Adultery goes against most people’s moral codes and against the vows you likely took while getting married, but that does not always mean that it will become a meaningful factor in your case.
Judges, for example, usually do not rise off the bench and shout at the spouse who cheats. Adultery is a symptom of bigger issues in the marriage most of the time. Judges can help you get to the bottom of that but usually it is you and your spouse are the ones who ultimately have to do the dirty work of dividing property and time with your children. The judge only rarely plays a part in your case. Any thoughts of the judge being the one to make a dramatic action of some sort towards your cheating spouse most likely won’t happen.
Remember that a judge is someone who tends to see bad “stuff” a lot. Their job is to take people just like you, identify legal issues, and make decisions based on equity, experience, and hopefully the Texas Family Code. Judges are not easily shocked, in other words. In Texas, you can get divorced for any reason- or none. This is what is known as a “no-fault” divorce. In ages past you had to prove mistreatment, adultery, or some other cause to get divorced. Now, getting a divorce is much simpler. Whether that is a good or bad thing is up to the eye of the beholder, I suppose.
Today, you can still allege in your Original Petition for Divorce that your spouse has committed adultery, and this is a ground for divorce you would like to pursue. Successfully proving that your spouse committed adultery can change the outcome of your divorce from the standpoint of how much spousal maintenance you receive, the amount of time you can spend with your children as well as the property that you can end up with when the divorce is over with. There are several consequences to your spouse committing adultery if it has had an impact on your case.
Adultery is defined as when a married person has consensual sex with a person to whom he or she is not married. The key is that your spouse needs to have had sex with the other person for you to support an allegation of adultery. Emotional infidelity where your spouse has texted or exchanged messages with an old boyfriend via social media is not adultery, The same goes for meeting up at a restaurant or even kissing. These are all violations of your marital vows but are not adultery. You need to be able to show that your spouse had intercourse with this other person and then show the impact of that on your marriage and family. Otherwise, an adultery allegation will not make a material difference in your case.
A key aspect of this discussion is that you are still married until the judge signs the final decree of divorce in your case. Many people in your position assume that the divorce happens at the beginning of a case once you file your original petition. However, even while you are going through the divorce (no matter how long it takes) you are still married. Our attorneys at the Law Office of Bryan Fagan have seen adultery occur before and during divorce cases. It is not uncommon for someone to begin dating during a divorce or even introduce their children to a significant other. This is a major mistake in your case and should not be something that you do if you want to allow yourself to achieve whatever goals you have set for yourself in the divorce.
How can adultery influence the outcome of your divorce?
If you get to a point in your case where you and your spouse are not able to settle the case, the next step in the process is to see the family court judge for a trial. When you make it that far in your divorce be aware that the judge can decide the issues of property division based on several different criteria and factors- including whether adultery has occurred within your marriage. In many divorces, the outcome of property division will be that the property is divided right down the middle- 50/50. However, depending upon the other relevant factors of your case it could be that the judge awards a disproportionate share of the property to either you or your spouse based on your behavior leading up to the divorce.
Most of the time, your income-earning ability and that of your spouse tends to be the most important factor when it comes to how a judge will decide how to divide your community estate. As a rule of thumb, if you earn much more income than your spouse then you should expect your spouse to receive more community property- all other factors being equal. The reason for this is that a judge will view that situation as being one where you will be more ready to bounce back from the divorce, financially speaking, from the divorce as compared to your spouse.
Here is where you can help your case by having an experienced attorney in your divorce case. For one, that attorney will have experience working in your judge’s courtroom. He’ll know the judge’s history as far as how he rules on issues and if particular qualities in a case catch his ire. For example, if your judge typically is tough on men who cheat on their wives then that is certainly something that you and your spouse should consider as you negotiate. If you are the wife in this case then you can probably afford to negotiate a little more aggressively, knowing that the judge in your case is likely to support you and your positions. On the other hand, if you are the husband then it may be time for you to negotiate smartly and not overplay your hand.
With all of that said, we are all human. If you have been cheated on then this is going to impact how you negotiate with your spouse and approach the case in general. Your spouse should not expect you to let bygones be bygones. Depending on the nature of the cheating then this may color how you approach every issue in your divorce. This could be something difficult to just let roll off your back as some would recommend. As a result, you need to be able to speak to your attorney about the cheating so that you can figure out how to approach the subject of your divorce. Your attorney can talk to you reasonably and calmly about the issues.
Even if you hear something that you do not necessarily like it is crucial to remember that you hired your attorney to give you information and perspective that you otherwise would not have. This is true even if you are given information, you do not necessarily like. As I tell clients with some frequency- I would love to give you a “candy and cookies” talk every time we chat, but that’s not possible. Rather, a “broccoli and cauliflower” talk may be necessary from time to time.
This is why it is important to trust your attorney. If the lawyer advises you that judges do not particularly care much about cheating of the variety relevant to your case, then you should consider that perspective even if it hits you hard and seems unfair. It may not be possible for you to be completely rational about this subject at this stage of your life, but you can seek out the counsel of an attorney who can be. The attorneys with the Law Office of Bryan Fagan are here to walk beside you to provide the information you need- whether it is music to your ears or sounds more like nails on a chalkboard.
Keep your children safe, above all else
As easy as it may be, we recommend doing your best to keep these issues away from your children at all costs. Unfortunately, it may be true that your children have been made aware of cheating in several ways. You will have some work to do as far as helping them understand the cheating or explaining it in whatever fashion you think is appropriate. Your spouse may have spoken to your children, as well. Older children may have the maturity and level of understanding to be able to know what this means to their family. On the other hand, some children may be young enough that they are not yet mature enough to understand what cheating is or what it means. You will need to consider this for yourself and make an appropriate decision on how to approach the subject of cheating.
A key mistake that many parents who are already dating during the divorce make is to introduce their children to the other woman or man. This is usually a major mistake. Cheating is one thing, but exposing your children to cheating is another. Remember that you are still married until the judge signs off on your final decree of divorce. For that reason, you are still cheating on your spouse even if you have and did the marriage from an emotional perspective. You are adding insult to injury by introducing your children to the other person while the divorce is ongoing. This can take your case from one where cheating is involved to one where adultery can be used as a cause or ground for divorce.
What sort of evidence do you need to be able to prove adultery?
As we mentioned earlier in today’s blog post it is one thing to allege that adultery is a fault ground for divorce in your case while it is a completely different factor for you to be able to successfully prove that adultery was a material factor in ending your marriage. To do so, you will need to be able to present evidence to the court that adultery satisfies the burden of proof in your situation. In some cases, you may be able to get your spouse to admit that he or she committed adultery. However, in other cases, you will need to seek additional evidence to be able to prove that the adultery occurred.
Presenting copies of your family cell phone records to show dozens of phone calls over a week or even text messages and emails is a good place to start. Or, if you can show that your spouse changed their work schedule and that it did not result in additional time spent with your family but rather that your spouse would be away from home more after the work schedule change then this can also tend to show that adultery has occurred. You can work with an experienced family law attorney to help guide you when it comes to doing things like hiring a private detective to be able to investigate your spouse’s behavior.
Make sure that you are sharing all available information with your attorney
No matter what side of the cheating you are on it is a good idea for you to tell your attorney the truth when it comes to issues related to cheating. If you are the spouse who has cheated, then you will need to come forward to your attorney about the allegations your spouse will make against you and what truth there is to those allegations. This way your attorney can begin to prepare with you a good defense or at least help you to begin negotiations with an understanding that you have cheated on your spouse.
The last thing that you want to do in a situation like this is to hide relevant information from your lawyer. These skeletons in your closet tend to jump out at the least opportune time. You can make your case go from bad to worse by hiding the truth from your lawyer. One of the qualities that you look for in an attorney should be someone that you can trust and someone that you can trust with your information. We know that you are not a perfect person- none of us are. Hiding information from your lawyer means that the information will come out at some point- usually at a point where you cannot defend yourself or have an opportunity to turn that information around to use it against your spouse. Rather, when you hide information from your lawyer it usually comes out that you are going to harm yourself more than anything else. It is not worth hiding the information for a short period.
The bottom line in a divorce case where adultery is an issue it is not a given that adultery will be the most important factor in your case. Rather, it may end up being a relatively small part of your case where the entirety of the case does not hinge on whether adultery occurred. You need to think about the circumstances surrounding the adultery as well as what impact it has had on your family. Even then, it still may not be a significant topic for your divorce case.
No matter what your situation is you need to have experienced legal representation in your case. The attorneys with the Law Office of Bryan Fagan are here to be able to help you serve you should you require assistance in your divorce. We are available to meet with you to discuss the challenges in your case and your life so that we can help you achieve whatever goals you have in your divorce as well as in your life after the divorce comes to an end.
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 as well as about how your family’s circumstances may be impacted by the filing of a divorce or child custody case.
Bryan Fagan, a native of Atascocita, Texas, is a dedicated family law attorney inspired by John Grisham’s “The Pelican Brief.” He is the first lawyer in his family, which includes two adopted brothers. Bryan’s commitment to family is personal and professional; he cared for his grandmother with Alzheimer’s while completing his degree and attended the South Texas College of Law at night.
Married with three children, Bryan’s personal experiences enrich his understanding of family dynamics, which is central to his legal practice. He specializes in family law, offering innovative and efficient legal services. A certified member of the College of the State Bar of Texas, Bryan is part of an elite group of legal professionals committed to ongoing education and high-level expertise.
His legal practice covers divorce, custody disputes, property disputes, adoption, paternity, and mediation. Bryan is also experienced in drafting marital property agreements. He leads a team dedicated to complex family law cases and protecting families from false CPS allegations.
Based in Houston, Bryan is active in the Houston Family Law Sector of the Houston Bar Association and various family law groups in Texas. His deep understanding of family values and his professional dedication make him a compassionate advocate for families navigating Texas family law.
