Adultery and the Texas Family Code

Your life is proceeding as normal until one day you come across your spouse’s phone. Last night your family had a fun dinner at your favorite restaurant, and you wanted to look at the photos he took of the evening. Without thinking you grab his phone off the kitchen counter to relive that great night. However, when you start scrolling through his photos you start to see more than you bargained for. Revealing photos of your husband and another woman together in what looks like a hotel room. Your mind starts to race. This couldn’t be what it looks like, right?

Pressing forward, you start to comb through his text messages and begin to see multiple text message chains from the same phone number. That phone number is not one saved with a name but it’s clear from the content of the texts that this is a romantic relationship. Plans for meeting up after work, meals together- everything that you would expect to see a couple discuss. There is no doubting it anymore- your husband is having an affair. 

Never in a million years did you ever think that you would be in this position. All the emotions that you would expect to feel at this time come rushing at you. Anger, jealousy, betrayal, shock, and sadness. Each emotion hits you like a wave crashing against the shoreline. It feels like you have been experiencing all of this for an hour, but it has been just a minute or two. Life as you know it is over. This isn’t just a one-time affair, something that can be rationalized by you and your husband. Rather, this is a concerted effort by him and this other woman to engage in a relationship. Almost like you didn’t even exist.

After you take some time to think about it the only thing that you can even contemplate is protecting your children. They can’t see their mother masquerading like she is in a functioning marriage. How could they? You know too much. Your husband didn’t even respect you enough to keep the cheating much of a secret. What you want to know is the impact that this extramarital affair will have on a divorce. Can it be used to your advantage? How will it potentially impact your case? How can you prepare for the divorce knowing what you know?

This is what we will be discussing in today’s blog post from the Law Office of Bryan Fagan. Marital infidelity, cheating, adultery– call it what you will. This is unfortunately a common topic in divorce cases. We are going to walk you through how adultery can impact your divorce and what you need to know about this subject before you begin a case. If you have any questions about what you have read today, please do not hesitate to contact our office for a free of charge consultation. 

What can adultery mean in a Texas divorce case?

Adultery is based on sexual intercourse between consenting adults. The Texas Family Code does not contain a specific definition of the term. However, Texas appellate courts have defined adultery in that way in cases from across our state. This tells you that whatever your definition of adultery that you take into your divorce should contain elements of the sexual act. Touching, flirting, texting, kissing and behavior like this may be part of adultery. However, without the sexual act, you do not have adultery for a Texas divorce. 

The next question that may be going through your mind is how do you go about proving the adultery? You may have strong suspicions about what has gone on between your spouse and another person, but you need to be able to prove that the adultery occurred for it to make a difference in your case. Keep in mind that the adultery must have taken place during your marriage. Cheating during your engagement does not count. However, cheating while you and your spouse were separated during your marriage is fair game. 

Circumstantial evidence can be used to prove adultery although it can be difficult. What circumstantial evidence comes down to are suspicions, feelings, or indirect evidence of the adultery. Enough circumstantial evidence can add up to a strong case, but it does not always work out that way. Direct evidence of the affair is better when it comes to making your case for adultery in your divorce. 

The facts of a family law case that involves adultery are extremely important. You will come to find out that it is impossible to try and figure out what will happen in your case based solely on what has happened in previous family law cases. Your situation may not even fit the legal definition of adultery. All this is to say that you need to speak with a family law attorney before you start to guess how the infidelity in your marriage will impact your case. 

How can adultery impact your divorce?

Adultery can impact your divorce case in several ways. Let’s begin by focusing on how an adultery finding can impact your case when it comes to property division. Property division is one of the two major areas of your divorce case, with child custody/conservatorship being the other. When we talk about property division what we need to focus our attention on are community property laws. For those of you who are unfamiliar with community property in Texas, you can refer to blog posts like this one for an introduction on the subject. 

Community property principles influence how your marital property is divided in the divorce. Under Texas community property law, all property owned by you and your spouse at the time of your divorce is presumed to be community property. However, this presumption can be overcome with evidence showing that the property is separate property owned either by your spouse or by you before your marriage or acquired during your marriage by gift or inheritance. 

A divorce court will have the authority to divide up your marital property in a trial. The alternative arrangement would be for you and your spouse to divide your marital property through negotiations and a settlement. In truth, this is the most likely outcome of your case. Mediation and informal settlement negotiations are the places where most of you reading this blog post will decide your community property division. It is only when a settlement cannot be reached that you would need to submit your case to a judge in a trial. 

A judge is tasked with dividing your community property in a just and right manner. The most widely held belief in a Texas divorce when it comes to community property division is that the property must be divided 50/50, right down the middle. However, this is not the case. Property is divided in a way that is “fair” based on the circumstances of your case. This is where adultery and all the other circumstances involved in your case come into play. A judge cannot just look at one factor or another when deciding on community property division. Rather, all the relevant factors of your case will be considered in combination with one another. 

Adultery is just another factor for the court to consider in addition to the following attributes and characteristics of you and your spouse: your ages, your work experience, your skills, your education, your health situations, what your conservatorship roles are concerning your kids, your impairments if any and what role you play in the care of a disabled child (if any) are just a handful of those factors. These are the sorts of things that a court would look to when determining how to divide up property. 

Adultery acts as an important factor in this decision-making paradigm for the judge. A court would look at the financial aspects of the adultery first and foremost. Did your spouse use community income to further the affair? Did your spouse use community income to purchase hotel rooms, gifts, meals, etc. on behalf of their paramour? This is otherwise known as wasting of community assets and is frowned upon by a court. The community estate would need to be reimbursed for any funds spent, first and foremost. Then, the judge can consider the adultery as an independent factor that led to the breakup of your marriage. 

On some level, it needs to be acknowledged that but for the adultery you and your spouse would likely not be going through a divorce at this moment. Ergo, the adultery led directly to the divorce and was the most significant cause of the case being filed. If that is what the evidence shows for you and your spouse, then this is a major issue. The judge can award you what is called a disproportionate share of your community estate because of the adultery. 

As you can tell, there are huge implications for your case if a judge finds that your spouse committed adultery as a fault ground which led to your divorce being filed. However, the clear and convincing evidence needed to substantiate this sort of allegation is not something to ignore. Having an experienced family law attorney available in your case to help prepare arguments, present evidence, and negotiate with your spouse is crucial to your chances of success. The attorneys with the Law Office of Bryan Fagan are available to help you with whatever your case may bring. 

How adultery can impact child custody issues

Taken by itself adultery is not an issue that impacts child custody determinations in a Texas divorce. Your spouse’s cheating is wrong, and dishonest, and leads to the breakup of your marriage. As a result, you are probably not going to be happy with him or her as you head into your divorce. The adultery will not directly impact child custody in your case unless the adultery somehow involves the children. Infidelity on a specific occasion away from your children may not impact your case at all. However, infidelity on repeated occasions that your children are exposed to may impact your child custody issues.

For instance, what are the habits of your new love interest? This may not be the most relevant consideration but if your paramour has a drug or alcohol problem then that may impact how a judge assigns your spouse visitation and possession rights. Drugs and alcohol in the home certainly impact the safety and well-being of your child. While a judge will want to do everything possible to foster a relationship between your spouse and your children if he or she has developed a relationship with an addict then that would not be a point in their favor whatsoever when it comes to custody issues.

When it comes to issues that impact families in child custody cases that means you will be focusing much of your time on being able to spend as much time with your children. Many parents for the first time will consider the possibility of them not being able to spend as much time with their children as they would like. As a result, this fear puts them in a position where they will do everything that they can to make sure that they can see their children as often as possible both during the divorce and afterward.

However, your spouse’s paramour may harm their ability to put forth a good case in this regard. A lack of judgment is one way that your spouse’s behavior could harm their case. By prioritizing their new love interest over the kids, a judge may see that your spouse cares more about their emotions than those of his or her children. Your children have probably lost out on quality time with their parents due to bad acts and adulterous behavior. This is a troublesome situation for your spouse to find himself in.

Finally, it does happen from time to time that a parent will introduce their children to a new significant other before a divorce is even over. It may be hard to believe but the parent will take the time to try and acclimate his or her children to their new love interest. This can defy logic in many ways and is extremely harmful to children who love you and see this new person as a threat to you in many ways. It complicates their relationship with their spouse, as well. 

Adultery and Texas divorce cases: be prepared and have a plan

Having goals and a plan to achieve those goals is the single most important part of a divorce as far as taking advantage of the time afforded to you is concerned. We know that there are families who go through divorce whose only goal is to make it out of the case alive or to keep as much of their money as possible. These are not bad goals in and of themselves, but when taken in conjunction with all the facts and circumstances of a divorce there are certainly better goals to prioritize. 

If you are scratching your head and wondering how to even come up with goals in a divorce, then you have come to the right place. The attorneys with the Law Office of Bryan Fagan are here to assist people just like you. That is what we work for. The opportunity to serve families like yours across Texas. The goals that you have become our goals and we never put the interests of anything ahead of your interests. You are our priority, and we are ready to advocate for you and your family. 

That is what you need in a divorce case. When adultery is an issue, it is already clear that your spouse has a major issue with boundaries. He or she thinks that it is okay to push you, your children, and your lives to the side in favor of their wants and desires. There are ways to hold your spouse responsible in a way that respects the law. We will work alongside you to ensure that this happens. Our attorneys take a personal interest in each of our cases, and we do not rest until your goals are achieved. 

Experience, professionalism, and preparation. That is what the attorneys with the Law Office of Bryan Fagan embody. Sit with us for a free of charge consultation. Tell us what your situation is. Listen while we teach you about the law and how it can impact your life. From there, you can decide for yourself what to do about hiring an attorney. We thank you for choosing to spend part of your day with us here on our blog. Be on the lookout each day for unique and interesting content about the world of Texas family law which is posted here. 

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

If you have any questions about the world of Texas family law, 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 how your family’s circumstances may be impacted by the filing of a divorce or child custody case. 

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