Book an appointment using SetMore

Adultery: What Counts as Infidelity?

If you are considering filing for divorce on the grounds of infidelity, it is important to know what effects and burdens that can have on your Texas divorce case. Texas is considered a “no-fault” state meaning the parties do not need a reason to get a divorce, but you may still plead specific grounds for divorce to claim fault on one party.

Texas Definition

To begin under the Texas Family Code in section 6.003 adultery means the voluntary sexual intercourse of a married person with one who is not your spouse.

This definition has its room for loopholes, and often people will come in claiming what they have done is not adultery. This is because the actual legal definition of the term requires sexual intercourse have happened. Therefore, there are many sexual encounters that may not be deemed adultery in a legal sense.

For example, if you or your spouse have been exchanging sexual photos, text, emails, or calls it of course is considered cheating, but under a legal definition it cannot be adultery. The same goes for physical contact with another that does not amount to sexual intercourse including kissing, groping, petting, and all other things that can be imagined.

Burden of Proof

Now that you can understand just what exactly adultery is in a legal sense, it is important to know that if you choose to claim your spouse committed adultery there will need to proof of the adultery.

In Texas, the party claiming adultery will have the burden of proof of establishing it by either direct evidence or circumstantial evidence. Most civil cases will require the party claiming adultery to establish it by a “preponderance of the evidence.” However, adultery is held at a higher standard and must be proven by “clear and convincing evidence.” Therefore, a simple suggestion or innuendo cannot be enough to prove adultery. Ayala, 387 S.W.3d at 733.

Direct evidence is straight forward on it’s face that adultery has taken place. For example, videos and photos of your spouse with another person would suffice, and if you are a woman who has gotten pregnant by another man or a man who has impregnated someone not your wife, these are examples of direct evidence.

Circumstantial evidence can be anything else that can help prove adultery has taken place when there is not direct evidence. For example, if there are bank statements that show excessive amounts of money being spent, or allegations coming from third parties, or people outside of your relationship.

Do I Need a Private Detective?

When spouses are unsure if there is actual adultery going on, they will come with the question of whether hiring a private detective will benefit their case.

In consideration, it is more important for your attorney to determine if hiring a private detective will be practical considering how expensive some private detectives can be. Your attorney should first know what martial property will be at issue in the divorce, because unless there is a substantial amount of assets, using funds to hire a private investigator may not be in the best interests of the client.

This is because the affects of adultery may have a significant outcome on your divorce case which will be discussed later in the blog.

Dating During a Divorce

Many times, people will come in who have already moved on with their life and have a new significant other all while still being married. Many potential clients will question if it is okay to do so and if not, what effect it will have on your divorce case.
The bottom line is you should not be dating prior or during your divorce proceeding. The reason being is that it is still considered adultery for you to date another before becoming legally divorced from your spouse.

In Texas, you are still married until the day a judge signs off on your final decree of divorce and your divorce is finalized. Texas does not recognize what is known as a “legal separation.”

Effects of Adultery on Your Divorce Case

Most importantly, it is important to know how claiming adultery will affect your divorce case besides placing the burden of proof on you. These changes may be the reason why some clients may instead plead a “no-fault” ground for divorce.

Disproportionate Share of Property

In a divorce all property, assets, and debts must be considered for distribution between the parties at the end. It is true that Texas does not require parties to have a reason why they are getting a divorce, however if you choose to plead a grounds that places the blame on one spouse this will be considered when dividing the community property.

This is because in Texas everything is not always split 50/50 as some people believe, but instead community property is split in a “just and right division.” If adultery can be proven, the other spouse may make a request for a disproportionate share of the community property.

The Judge will take that request into consideration if adultery has been proven when decided and it can have negative repercussions if you have committed adultery.

Spousal Support

The same truth can be said regarding spousal support as well. First, if a spouse is eligible by law to receive spousal support, a Judge can use the proof of adultery to determine what he believes is a fair amount and duration of the spousal support.

How Adultery Won’t Affect Your Divorce

Many clients believe their spouse will use adultery to their advantage as a tactic of intimidation. However, a spouse should keep in mind that proving adultery alone cannot:

  • Automatically make a spouse eligible for spousal support/maintenance; or
  • Change the outcome of child custody/conservatorship provisions either.

By now you will have retained the meaning of what it means to commit adultery under Texas law. You will also know how to prove adultery has been committed by either direct or circumstantial evidence, and if you should hire a private detective to help prove adultery was committed. You should also remember why you should not date during a divorce and the affects pleading fault will have on your divorce case. If you believe your spouse is committing adultery and you are unsure about how you need to move forward, we have experienced attorneys who will hear you out and offer their expert advice here at the Law Office of Bryan Fagan.

Categories

Let's Get Started Together

Fill out the form below to receive your E-book
  • Please enter your first name.
  • Please enter your last name.
  • Please enter your phone number.
    This isn't a valid phone number.
  • Please enter your email address.
    This isn't a valid email address.
  • Please make a selection.
  • Please enter a message.