Is having an affair illegal in Texas?

Being cheated on in your marriage is a betrayal of an extreme degree. Your spouse is the person that you should be able to trust most in the world. When that trust is violated, it can cause your world to turn upside down. What you are left with is the need to evaluate the marriage and determine if it is salvageable. This is not a position that you ever wanted to be in. However, it is in your best interests to address the issue directly and with clarity. 

Today’s blog post from the Law Office of Bryan Fagan focuses on spouses having affairs. Specifically, whether having an affair is illegal in Texas, if you have any questions about the material presented in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. We offer free-of-charge consultations where you can ask one of our attorneys a question about this blog post or any other topic in Texas family law. 

What role can an affair play in your divorce?

Let’s start by answering a basic question about affairs and divorce. Specifically, what role would an affair have on your divorce? We need to start discussing this topic by being clear that family law cases are incredibly fact dependent. This means that the facts and circumstances of your case will have a major impact on the outcome(s) of your case. What this tells us is that the circumstances of the affair will determine its impact on your case.

What reasons do you need to get divorced in Texas?

Getting divorced in Texas is much easier now than it once was. Texas, like all other states in the country, is known as a “no-fault” divorce state. This means that neither spouse needs to list a particular reason, also known as a fault ground. Discord or conflict in personalities or irreconcilable differences are the most common reasons listed in divorce petitions as to why a divorce is necessary. What those irreconcilable differences are can be up to you and your spouse. 

Can you still specify a reason for getting divorced?

Yes, even though it is no longer necessary to cite a fault ground for a divorce it is possible to do so. By alleging and then proving a fault ground for divorce you make available several different outcomes. Among those outcomes include winning a disproportionate share of your community estate and favorable child custody outcomes. Note that it is necessary to allege and then prove with sufficient evidence the fault ground. It is not enough to list the fault ground in your petition and leave it at that. 

What are some examples of common fault grounds for divorce in Texas?

A few of the more commonly cited reasons why a divorce may be necessary are cruel treatment, abandonment, and adultery. Adultery is the legal term in a divorce for marital infidelity. If your spouse has an affair, then you would cite adultery as the cause of your divorce. When we say that these fault grounds are common that does not mean that they are the norm for inclusion in a divorce petition. Rather, it is much more common for spouses to pursue a no-fault divorce. 

What about adultery- is that illegal in Texas?

Having an affair, being unfaithful, or adultery. Call it what you will but do not call it illegal. No state law makes it a crime to cheat on your spouse. Illegal acts can and certainly do figure into divorce cases in Texas. However, that does not make adultery a crime in Texas. Do not expect that you will be able to press charges against your spouse or their paramour for an affair. 

With that said, we have an important matter to discuss regarding the affair. Namely, why bother citing any fault ground for divorce- adultery included? We have already talked about how you can get a no-fault divorce without much effort. So what does it mean to gain a divorce based on fault grounds? What does a disproportionate share of your community estate look like? Finally, what sort of benefit is there regarding child custody to successfully prove your marriage ended due to an affair? These are the questions we will tackle in the remainder of today’s blog post. 

A fault ground-based divorce emphasizes the need for an experienced attorney

If your goal is to obtain a divorce based on a specific fault ground then you need to be prepared. An experienced family law attorney knows how to not only cite the correct fault ground but also prove the fault ground when it comes time to do so. It is simple to tell a judge that your spouse had an affair. However, proving the adultery fault ground is a different matter altogether. 

There is a definition for adultery in the Texas Family Code. Not every “type” of physical or sexual infidelity counts as adultery in a legal sense. As a result, an attorney can help you determine if your situation even matches the definition of adultery in a legal sense. It would be incredibly frustrating to have a plan based around your adultery fault ground only to find that your situation does not match up with the definition. An experienced attorney can help you avoid situations like that. 

Collecting evidence to prove your fault ground for divorce is another use for an attorney. Going to court and telling the judge that your spouse was unfaithful needs to be done with evidence. In some situations, you will need help to figure out how to present the best case to argue that infidelity figured into your marriage. The experienced family law attorneys with the Law Office of Bryan Fagan know how to do just that.

Is there a difference between a divorce with or without fault grounds?

A person can get divorced with or without fault grounds as a part of their divorce. The fundamentals of the case do not change just because fault grounds are involved. However, there are some substantial differences between getting divorced based on fault grounds. Your case becomes more complex, bear in mind. Instead of being able to get into the child custody or property aspects you and your attorney need to collect evidence and work to prove a specific fault ground for divorce. This takes time and effort.

Divorces without fault grounds tend to have parties who are better able to negotiate with one another. Despite what you may have heard about divorce cases, they rely a great deal on spouses being willing to negotiate with one another. That means that the two of you being willing to work together on issues related to your marriage is essential. Just having the ability to talk to one another is a great starting point for spouses going through a divorce.

Contrast this with people who are going through a fault-grounds-based divorce. In many situations, you and your spouse may not be able to work together on much of anything now. If infidelity and adultery are relevant factors in your case, there may be such a degree of hurt in your marriage that working together is out of the question. Or at least it is out of the question right now. As a result, your divorce may be slower to finish than in other cases. 

Approaching property division questions in a Texas divorce

Infidelity as a fault ground in your divorce plays a potential role when dividing marital property. In Texas, we need to know something about community property to discuss property division. Texas is s community property state. Under Texas theories of community property, property acquired during the marriage (with some exceptions) counts as community property. This is important because community property is subject to division in a divorce by a judge. 

Texas also honors separate property. Separate property is any property acquired before your marriage. Additionally, property acquired during your marriage by gift or inheritance is also considered to be separate property. These are important distinctions to draw. When preparing for property division in a divorce you should plan. This means categorizing and inventorying the property that you own. Coming up with property values for both separate and community property is wise, as well.

Debts are also a part of the separate and community estates. All of the debt that you own must be accounted for. There are debts of the community and also debts associated with your separate estates. Having an attorney helps when it comes to property division. The last thing you want to do is find yourself in a position where you need to perform all these responsibilities on your own. 

Property division when fault grounds are involved

The standard that a Texas family court uses to divide marital property is that of a just and right division. Dividing property in a just and right manner does not necessarily mean “even.” Rather, a just and right division considers the various factors in your marriage when determining how to divide the property. This can become quite complex. Your future earning capabilities, education, separate property, and fault in the breakup of the marriage all figure into an analysis. 

However, in many divorces, the parties end up sharing the community property in a somewhat equal fashion. It is not uncommon to see property divided evenly between spouses. This is one reason why many people assume that property is always divided right down the middle between spouses. It certainly can be divided in this way but does not have to be. Rather, an analysis of your circumstances would be performed by a family court judge. 

Remember also that spouses tend to determine how property is divided through negotiations. Do not presume that a judge will play this role in your case. Rather, it is much more likely that you and your spouse will be the ones to divide your property up. All these factors that a court uses to consider how to divide property also factor into your case, however. If you all are unable to work together to divide up your property then a judge will step in and make those decisions for you all. 

Infidelity and a division of the community estate

When you have infidelity listed as a fault ground and then prove that infidelity occurred you are in a unique position within your divorce. Infidelity allows spouses to be awarded a disproportionate share of their community estate. Disproportionate in this context just means more than half. Or, you can look at disproportionate from the perspective of a person who gets more than they otherwise would. As in, you would normally receive half your community estate but because your spouse cheated on you now you will receive 65%. 

Again, the exact circumstances that you are going through matter a great deal. Do not assume that because there is cheating in your marriage you will receive a disproportionate share of your community property. There is still the matter of proving that fault ground. Additionally, you need to show that the fault ground helped contribute to the breakup of your marriage. These are steep hurdles for you to have to jump through. 

Did your spouse not only cheat on you but use community property funds to do so? Gifts, hotel rooms, vacations, etc. If community property was utilized to help facilitate the infidelity, then expect that to be a factor in how property is divided. Otherwise, it is unlikely that cheating plays a tremendous difference in the property division in your case. Talk with an experienced family law attorney with the Law Office of Bryan to learn more about property division with fault grounds. 

Child custody issues and fault grounds

The other area of your divorce which may be impacted by infidelity relates to child custody. Child custody is a catch-all term that is used to reference just about any topic related to your children. Possession, visitation, child support, and access are all a part of your child custody rights. Again, negotiating with your spouse on these custody rights is a major component of your divorce. Despite what you otherwise may think you and your spouse are in a unique position to negotiate these subjects. 

In a divorce, the more common response when talking about fault grounds is that they impact property division most significantly. Child custody issues can be impacted by infidelity depending upon the circumstances of your case. Again, you need to look at the infidelity and determine what impact it had on your family life. Some cheating takes place completely outside the scope of your children. They know nothing about the infidelity. 

On the other hand, sometimes your children will unfortunately come into contact with cheating in some way. The kids may observe your spouse with his or her significant other. This could lead to questions and anxiety about how to handle the situation. Children are less equipped to handle stressful situations involving infidelity. 

Best interests of your child

Decisions are made in child custody cases based on the best interests of your children. The best interests standard attempts to take into consideration the life of your child now and their future needs. When determining what is in a child’s best interests a court wants to see that parents can make good decisions on behalf of their children. Infidelity and the circumstances surrounding it often result in courts penalizing the cheating spouse. 

Those penalties can be seen in less favorable visitation schedules. For example, if your spouse cheated on you and exposed to children to the cheating or the other person then he may have restricted visitation with the children. This is true especially if you can prove that the children have been emotionally harmed by the cheating. Again, this type of evidence may be difficult to obtain. However, bear in mind that children twelve years and older can speak to a judge about primary conservatorship and related topics at the motion of any party.

Final thoughts on infidelity and divorce in Texas

The Law Office of Bryan Fagan knows how difficult it is to go through a divorce. We walk alongside our clients in their divorce cases each day of the week. As such, we can see the stresses and anxieties which are a part of this process. We hope that today’s blog post has helped plan your divorce. 

The attorneys with the Law Office of Bryan Fagan thank you for joining us today on our blog. Our attorneys post unique and informative blogs each day of the week. Our goal is to help promote a better understanding of the issues in family law in the communities that we serve. 

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

The attorneys with the Law Office of Bryan Fagan 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. Before signing a document or negotiating on a subject you do not know well, contact our office. We look forward to the opportunity of serving you during an important part of your life. The Law Office of Bryan Fagan is on your side.