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Adultery and its consequences in a Texas divorce

It is both a sickening feeling and a violation of trust to have beencheated on while you are married. The person with whom you share a bond most closely has decided to step over boundaries and engage physically with another person. For this to happen there may be problems in the marriage which you already knew about but were not able to do anything about. Or, you may have been caught completely off guard by the actions of your spouse. In any event, the pain that comes with being cheated on does not go away easily. Once this happens you need to be able to decide about how to proceed and whether you can remain married.

The decision in some cases may have already been made for you. If your spouse cheats on you the first time that you find out about the incident(s) may come with the filing of an Original Petition for Divorce. This is the initial filing in a divorce case and starts the ball rolling on the legal dissolving of your marriage. However, even if your spouse has already filed for divorce, you still have an opportunity to try and save your marriage despite what obstacles may be in your way. This does not mean, however, that you can ignore the divorce petition. While you attend to matters related to the divorce, including hiring an experienced family law attorney, here are some thoughts on what kind of work can be done to try and save your marriage.

Working to save a marriage after infidelity

This is a tricky subject to write about because we don’t know what your specific situation is with your spouse. Has the cheating been going on for years and this most recent incident is just the most recent example? Or is this a one-time event (so far) with no track record to indicate any kind of habitual behavior which has been undertaken? What has your communication been like with your spouse about the infidelity? Has he or she been willing to work with you in discussing the issues underlying cheating and what he or she is going to do about them? These are relevant questions to ask yourself right now as you sort through whether any steps can be taken to try and save your marriage.

The tried-and-true method of solving a marriage problem involving adultery or cheating is to attend counseling with your spouse or alone. Sometimes a spouse will need to take some time to think about their options and whether counseling is something that he or she would be willing to engage in. There are certain stigmas surrounding counseling and for some people, those stigmas mean having a tougher time accepting that counseling may be the best path to take to address the problems in the marriage and the act of cheating itself. Once your spouse has decided about counseling then you will know what path a viable option in your situation is.

You can attend counseling in a variety of different settings. One setting which may be an option is through a private counselor or marriage/family therapist. These counseling sessions can take place at the counselor's office, over video, or even on the phone. Different counselors make themselves available through different mediums to their clients. You should check with any counselor or therapist whom you are interested in treating to learn about the options for treatment. Your insurance provider may have in-network counselors whom you can see at relatively low out-of-pocket expenses. Your church may also have resources available to you through your pastor, priest, or even fellow congregants.

In any event, all these different options begin with you and your spouse having some kind of communication between the two of you. This can be easier said than done after a major event in the marriage takes place such as infidelity. You would need to look inside yourself, consider your situation and then decide whether it is even reasonable for you to propose that some kind of marriage or family therapy takes place. You know your circumstances better than anyone. If it is not reasonable to move towards marriage therapy, or if you do not want to, then this is not an option for you.

If you are in a position where you do not know which direction to go in, then I recommend reaching out to one of the experienced family law attorneys with the Law Office of Bryan Fagan. Our attorneys have walked with people through all sorts of marriage problems- including infidelity. We have the empathy, understanding, and knowledge of the law to provide you with assistance if you determine that a divorce is necessary despite your attempts to try and save your marriage. A free-of-charge consultation with one of our experienced family law attorneys is only a phone call away.

How do you define adultery?

Before we get into the logistical and procedural components of adultery it is worth our time to talk some about how adultery is defined in the family courts of Texas. Contrary to what many people believe, adultery describes behavior that is more than kissing or even touching another person who is not your spouse. While this may be something that you disagree with on a moral level, I am not trying to cast judgment on your own set of ethics. Rather, we are trying to get to the bottom of what a court is going to look at and what factors matter when determining whether your specific situation could constitute adultery.

Adultery is contained in the Texas Family Code but is not specifically defined. This allows the courts in Texas to influence the definition of adultery to a large extent. Sexual intercourse of one spouse with another person who is not their spouse is the widely used definition of adultery in Texas family courts. If you believe that your spouse has engaged in adulterous conduct, then you would need to be able to provide sufficient evidence to the court as far as proving your allegation. This means that stating in your divorce petition that adultery has happened by itself does not mean that adultery will play a role in the outcome of your case. For that, you would need to be able to provide evidence to the court.

Coming up with the evidence necessary to prove adultery in a Texas court

Sometimes it is easier said than done when it comes to proving adultery in a Texas courtroom. What you know to be a longstanding affair between your spouse and another person may not be that obvious to a third party- especially a family court judge. So, the question we need to ask ourselves is how we can successfully prove to a court that adultery has occurred. Almost as important as proving that the adultery occurred is being able to prove that the adultery had a tangible impact on your marriage. This is how adultery can become a factor that makes a difference in the outcome of your case.

Even if you and your spouse are separated from one another you are still technically married. This means that if you or your spouse were to engage in adultery during a separation then this could matter a great deal in your divorce. Remember, also, that Texas does not have a statute on the books for a legal separation. In Texas, you are married until the divorce is finalized by a judge. This can have an impact on your life if you decide to begin dating before your divorce is finalized. What you or your spouse consider to be proper dating behavior may still constitute adultery depending upon if you are still married.

What would not work as far as evidence of proving adultery is concerned? Hearsay, third-party statements, and assumptions are not examples of evidence that would stand to prove adultery in Texas. Someone telling you that they saw your spouse somewhere kissing another person is not enough evidence, most likely for you to be able to successfully prove adultery in your marriage. Rather, you would need to be in a position where you could obtain more straightforward and more trustworthy evidence of adultery.

What does adultery mean in your case?

One thing that is sometimes difficult for spouses in your position to think about is that adultery is not good and is certainly not something that benefits you or your family. Depending upon your views on morality and marriage it can also be a violation of your sense of right and wrong. When you and your spouse cannot agree on issues related to adultery, cheating, and fidelity then your marriage is probably not going to last long and cannot be successful under most definitions of the word.

With that said, adultery is not just an emotional or relational issue. If all you could achieve in a divorce is to be able to show a court that adultery occurred so that you could feel better about yourself after the divorce that would not make much of a tangible difference to the divorce case itself. In Texas, there are real-life ways that your case can be impacted by adultery. For instance, if your spouse has engaged in adultery and has spent money on their significant other then this is an issue when you are attempting to divide up your marital estate.

Money spent on gifts, evenings out, hotel accommodations, or trips can negatively impact your family finances. Remember that Texas is a community property state. It is most likely that the money spent on the significant other is community income which comes from either of your jobs earned during the marriage. Just because your spouse is spending money that he or she considers to be "theirs" does not necessarily make this true. Rather, it is more likely that he or she is spending community income and resources on adulterous activities. This means that you have the chance to try and recoup those expenditures in the divorce.

You can ask the court in your divorce petition to grant you reimbursement of any funds used on the part of your spouse to pursue the adulterous affair. For example, you can allege that your spouse has engaged in adultery in your divorce petition. However, to get any of that money back in the divorce you would need to be able to provide evidence to the court that not only has the adultery occurred but that it has negatively impacted the finances of your community estate. This means that you must have some kind of evidence to be able to substantiate the allegations of adultery.

This can be easier said than done depending upon the circumstances of your case. Many times, your spouse would be very secretive and careful about how he or she spends money on their significant other. However, it could also be that you can come up with evidence of the adultery and a track record of their having spent money on this other person. Checking account notations showing hotel or other expenditures is a great place to start. Also, using credit card points or airline miles on purchases that don't involve you or your spouse can be a way for you to be able to use the adultery to recoup funds for your community estate.

Another way that adultery can have an impact on your divorce is if you were to seek what is known as a disproportionate share of your community estate in the divorce. A disproportionate share of your community estate means that you will be asking the court to award you a greater than 50% share of your community property in the divorce. In many divorces, spouses share somewhat equally in the division of property. This can be because of the circumstances of your marriage leading a judge to believe that this was a just and right division of your community property.

However, a just and right division of your community estate may lead a judge to believe that you are receiving a disparate proportionate share of the properties appropriate if you're spouse has engaged in adulterous behavior which has wasted community assets. We can see this in situations where not only are you able to allege that this type of behavior has occurred but are also successful in providing evidence to the court of specific times when the adultery has happened as well as specific amounts of money which have been spent on this other person.

The more specific you can be with the court, as far as your evidence is concerned, the better off you are adultery allegations will proceed. Keep in mind that a judge will be much more likely to give credit to your adultery allegation if you have specific evidence which can be used to add weight to the allegation. Additionally, a court can consider what sorts of benefits you would have received in the marriage had the relationship been able to continue. This is especially true if your spouse was the main income earner in the relationship. In that case, you may have derived most if not all your household income from being married to this person. No longer being married to him or her could greatly reduce your ability to provide for yourself financially.

Final thoughts on adultery in Texas divorce cases

Without a doubt, the specific circumstances in which you and your family find yourselves at this moment matter a great deal when determining issues related to adultery. We have already discussed how your personal feelings about cheating and adultery may not add up to what a court considers to be adulterous behavior. The last thing you want to do is to go into a divorce under the assumption that your spouse has engaged in adultery when that is not true based on the definitions of the term under Texas family law.

For this reason, it is a good idea for you to work with an experienced family law attorney before moving forward with your divorce. One of the difficult aspects of a family law case is that the issues are intensely personal. It is easy and understandable to be caught up in the relational components of the case and to lose sight of the legal and definitional components of it. This is especially true when you consider the subject of adultery. An experienced family law attorney can help you in a divorce by guiding you once he or she has provided you with the information that you need to make well-informed decisions about your case.

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