When we think of the most common cause of divorce, I am confident that many of us would say or think of adultery or infidelity right off the bat. Certainly, this is one of the most scandalous or salacious causes of divorce. Movies and television shows cannot wait to tell us all about these sorts of stories at every turn. When office gossip turns to divorce it may not be very interesting until we hear that our co-worker or their spouse had an affair. Then, suddenly, all ears on the storyteller. While this isn’t great behavior on the part of anyone involved it is undeniable that it gets attention.
If you are in a position where you have been someone whose spouse has committed adultery or you are a spouse who has had an affair then it is reasonable to be curious about the impact that the adultery could have on your divorce. After all, if we have come to learn anything about divorce from what we see on our various screens, adultery would appear to be a huge issue in divorce cases and their outcomes. Getting caught cheating by your spouse could mean the end of the marriage and you losing all your property and time with the kids if television is to be believed.
The question that we are going to try and answer in today’s blog post from the Law Office of Bryan Fagan is whether this is accurate. While we know adultery plays a part in divorce cases, we want to find out the areas in that adultery impacts divorce cases most acutely and the overall impact and effect adultery could have on your divorce. After reading today’s blog post if you have any questions about what you have read, 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. We aim to serve our community and for most of our current clients, their relationship with our office started in one of these pressure-free consultations.
What is adultery and where can it be found in a marriage?
Adultery is typically thought of as physical intimacy with a person other than your spouse. If you are curious you could look up the statistics that tie adultery and infidelity to ending marriages across the country. I won’t venture a guess as to how many or what percentage of marriages are ended by adultery. However, I will say that it is a factor in more than a handful of cases in that our attorneys represent clients. Adultery and infidelity cut to the core of the marital relationship and destroy whatever bonds of trust had previously existed. What you are left with is a decision: try to fix the marriage or move towards divorce.
Fixing the marriage is tough. Trust is the backbone of any successful marriage. In getting married you are giving your life over to your spouse. If that isn’t trust, then I don’t know what is. You are telling that person that you trust him or her so much that you are going to stop pursuing other romantic relationships, goals, and opportunities to commit to that person for the rest of your life. We can get caught up in the emotion and immediacy of a relationship, but the reality is that marriage is a tremendous leap of faith that you are taking with that person.’
The first step you need to take when it comes to trying to fix a marriage is communicating with your spouse about the issue that you are experiencing. While you and your spouse may talk to one another frequently it may not be the kind of deep, personal communication that you may have engaged in while you were dating. I get it- kids, work, stress, age, and many other factors come into play that can cause you all to lose focus on one another. In that time, something, or someone else may catch your attention and then the rest is history. You have a problem with your hands. Now you need to figure out how to work your way out of that problem or if you are even going to be able to do so.
With the television off and your phones put away you and your spouse can talk to one another about what has happened and where you want to go from there. If both of you are committed to trying to fix the marriage, then you can seek help through counseling or therapy. If only one of you, or neither of you, wants to fix the marriage and try to reconcile then that probably means that a divorce is around the corner. In any case, having these conversations is not easy and it will take some courage to have them. It is much easier to accept the infidelity and just move on to divorce. However, for some people and in some situations you may prefer to try and salvage the marriage. This is typically done through counseling.
You can check with your health insurance provider to see if there are any “in-network” counselors or therapists who can provide you with treatment. Your church may have a therapist in the parish or congregation that can help you. Your priest or pastor may even be willing to help you. Ultimately it is up to you to make the effort to try and save your marriage. This is not something where a judge, your uncle, or your neighbor is going to run to your rescue just in the nick of time to save you and your spouse from a divorce. This is going to take effort and it won’t feel good. Even if you are the “innocent” spouse who was cheated on this is not going to be a situation where you are going to just sit and watch your spouse be lambasted by a therapist.
If therapy or counseling does not work the other option is divorce. When adultery is the driving force behind getting divorced then you need to act quickly to develop a plan on how you want to proceed. In Texas, you can file for a no-fault divorce where you are alleging conflict in personality as the reason why you are divorcing. This means that you can tell the court that you have no specific reason for wanting the divorce, but that you and your spouse just don’t get along well enough any longer sufficient to sustain a marriage. This is the main reason people file for divorce in Texas and since the introduction of no-fault divorces, the rate of divorce in our state and the country has skyrocketed.
On the other hand, you can list adultery as the fault ground for divorce. You are telling the court that your spouse has cheated on you and that this is the driving force behind the divorce. As far as filing the divorce it will not do anything to change the course of how you initiate the divorce. However, as we will see infidelity can have a significant impact on the case as we near the end of the divorce and begin to discuss topics like child custody and division of property. However, for now, we can walk through what it means to file for divorce and what you need to do after filing your Original Petition for Divorce.
Once you file an Original Petition for Divorce along with temporary orders, a request for a hearing, and any other document relevant to your case you would need to serve those documents on your spouse. This is typically done with the help of a private process server or a law enforcement officer. Unless your divorce will be uncontested you will not be able to just hand the papers over to your spouse and move on to the next stage of your case. Your spouse has a right to personal service of the documents- even if he or she cheated on you and that is the reason why the divorce was filed in the first place.
From there, your spouse will file an Answer to your Petition and the divorce will be off and running. You can hire lawyers and have them assist with negotiations, planning, and general assistance in the divorce. When you are dealing with adultery then you may want to take special considerations into mind for making sure that your spouse does not bring the new person around your children, for example. In that case, divorce negotiations can be greatly assisted by an attorney. However, it is up to you whether to hire an attorney for your case. There is no requirement that you have an attorney help you in a Texas divorce. The choice is yours, but I think that there are plenty of good reasons to strongly consider hiring an attorney before getting divorced.
Adultery and its impacts on child custody
The first area of your divorce that adultery can have a significant impact on is child custody and issues regarding your children generally. In child custody, several different subjects are relevant to consider. First, when assigning conservatorship rights your judgment as a parent is looked at very closely. You are under no obligation to agree to a joint managing conservatorship with your spouse if you do not think that is appropriate for your family. Adultery can show a lapse or failure in judgment that goes to the core of parenting decision-making. Even if a joint managing conservatorship is something more common than not in a divorce that does not mean that it must be what you and your spouse institute for your family.
You can choose to negotiate from a perspective of a parent who wants your spouse to have limited visitation for a period. This would allow you to have some peace of mind when it comes to getting your children acclimated to life in two households. It can be nerve-wracking to have those sorts of changes occur for your children. It is especially nerve-wracking knowing that your children may be exposed to situations that are out of your control. This makes it very important for you to control what you can in the divorce. To ask for primary custody is a baseline to establish in the divorce especially if you have been the parent who is the primary caretaker for your children to that point.
The other part of conservatorship is the ability to make decisions on behalf of your children regarding important subjects like their schooling and their health. Adultery can be seen by a judge as an inability to make good decisions for yourself and that can also impact your children. Think about the case from the perspective of a judge for a moment before you decide how hard to negotiate regarding adultery. If this adultery meant that your spouse was engaging in an ongoing affair, then this speaks to a serious lack of judgment and the unwillingness to put others before him or herself. However, if the adultery in question truly was a one-incident mistake, then this probably will not impact how a judge issues orders in your case.
In any event, having an experienced family law attorney by your side helps you determine how hard to push and what areas to push in. It does not make much sense to aggressively negotiate with your spouse in an area where you cannot be successful with a judge. Being overly aggressive in negotiating for a particular item in child custody is your prerogative but you should do so only in an area where you think a judge is likely to side with you in court. Otherwise, doing so can harm your case.
The impact of adultery on community property division
The other major area of a divorce that adultery can impact in significant ways is that of Community property division. Community property is, for the most part, property that was acquired or purchased by you and your spouse during your marriage. It does not matter whose income was utilized to purchase the property or whose name appears on the title or receipt. Community property means that you and your spouse own the property together with no distinction as to who earns more money or who made the physical purchase of the item.
Community property is subject to division in a Texas divorce. You need to be aware of how property can be divided and how adultery can or cannot impact that division. All other factors being equal, the property is typically divided in a somewhat equal fashion. You and your spouse would both take close to 50% of any property divided in the divorce and would then go your separate ways. However, if adultery has played a role in your divorce, then this is a factor to be looked at. Specifically, the allegations and facts presented need to be viewed as far as how community finances were impacted by the adultery.
As we mentioned a moment ago, if the adultery was a one-time occurrence and truly did not cause much harm to your community estate then it is unlikely that the adultery will be a major factor in dividing property. This may come as a surprise to many of you. It seems like from popular culture that adultery almost always impacts how property is divided in divorce scenarios. However, while this can be true in many cases community property division is not impacted by adultery at all. Other factors like the amount of separate property owned by each spouse as well as the needs of each spouse after the divorce may count more towards Community property division than does the adultery itself.
On the other hand, if we look at adultery from the perspective of a spouse who purchased gifts for the significant other, took that person on trips, or otherwise wasted community assets then this will almost certainly be an important area to look at when it comes to division of community property. If this happened in your situation, then you can probably negotiate more aggressively towards a disproportionate share of your community estate being awarded to you. The reason for this is that a judge would also likely see the case from the perspective of you and your spouse being harmed by them as are wasting of community assets. Your spouse could be ordered to make the community property whole out of their pocket to level the playing field.
When it comes to dividing up the community estate having a creative and problem-solving attorney on your side can make a huge difference for you and your family moving forward. The best family law attorneys are ones that take significant problems and work tirelessly to achieve solutions that best serve their client and their families.
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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.
