You can call it whatever you want: cheating, infidelity, or adultery. By any name, your spouse being unfaithful to you is both an uncomfortable and extremely hurtful thing to have to go through. The idea that the person whom you should trust the most has violated the most central aspect of your marriage there's something that can stay with a person for many, many years. Unfortunately, it can also lead to divorce more quickly than probably any other subject under the sun.
In a divorce case, there are two components to cheating. The first component is the emotional aspect of the cheating that will certainly impact your relationship with your spouse moving forward period to think that he or her cheating on you would not change the nature of your relationship with that person would be unrealistic. He will almost certainly view that person differently and treat him or her differently. If you were having problems in the marriage even before the cheating it is possible that the cheating pushed you towards never again considering reconciliation or counseling.
The second aspect too cheating is that it has the potential to play a role in your divorce. Whereas the emotional in psychological aspects to having been cheated on are something that will stick with you throughout the day, the reality is that the impact of the cheating on your divorce will depend on a wide range of circumstances. This does not mean that any cheating behavior will be excused or that I am trying to minimize how important cheating is in a relationship. All it means is that you don't know exactly how cheating will impact your divorce until you begin to examine the specific circumstances of your case including the cheating.
In today's blog post from the Law Office of Bryan Fagan, I would like to share with you my thoughts on this subject. Specifically, I would like to help you to identify what important circumstances exist in your case that may be impacted by the cheating that has occurred. Since not all divorce cases are created exactly equal if you should consult with an experienced attorney with our law office before making assumptions about how a family court judge would likely view your circumstances in light of any cheating or infidelity.
To what extent has cheating occurred?
This is an important question that I think you need to ask yourself before we can consider the potential impacts of cheating itself. Most notably, how to recommend that you think long and hard about what type of cheating has occurred in terms of your marriage and the impact on your family to this point. Again, I do not want to sound sleazy or make it seem like I am condoning the behavior of this sort. However, the simple truth is that cheating can run the gambit from extremely long-term relationships to one-time incidents.
There are those of you reading this blog who have had their spouses cheat on them with a long-term partner. This is an especially difficult circumstance to have to stomach given the repeated betrayal of your trust as well as the emotional aspects of essentially your spouse having two relationships at one time. Not only is the physical aspect of the cheating unfortunate and heartbreaking but there are emotional aspects to long-term cheating, as well.
On the other end of the spectrum is cheating there exists more based on one-time incidents that were never repeated. Again, I mention this not to make light of the behavior but more so to point out that there are gradations of cheating but not only impacted your marriage on a relational and emotional level but likely also will impact your divorce. As I'm sure you could imagine, not all examples of cheating and infidelity in a marriage are treated equally. While you have every right in the world to be angry or spouse upper having engaged in either type of behavior that is far from certain that a judge will treat your spouse or the circumstances of your case differently based on cheating alone.
The other aspect of marital infidelity that needs to be discussed is about your children if you have any, to begin with. If your children were ever exposed to the infidelity then this could certainly be a factor that weighs on a family court judge when all is said and done. Cheating is damaging to a relationship and emotionally scarring. If you throw in a factor regarding your children then that only exacerbates things further. I think it is relevant to a case whether or not your children have ever been exposed to infidelity first hand.
What are the primary ways your divorce may be impacted by infidelity?
There are two areas of a divorce case that is generally speaking impacted by infidelity in a marriage. The first area would be regarding the division of Community property and the second area would be regarding child custody. Both of these areas are important, to be sure when we're talking about a divorce. However, from experience, I know that parents care much more about their children than they do their money. With that said, let's begin there and discuss how child custody issues may be impacted by your spouse has cheated on you previously.
If the cheating in question was more or less a one-time affair with no repeated acts then you may expect a child custody determinations of a judge to be impacted minimally by the cheating. I can see how you, and to be honest many people before you, would make an argument that infidelity is a sign that a parent is incapable of putting their best interests of their child first period, however, the reality is that I think most family court judges would not necessarily see it that way. Unless the cheating was made manifest to your children and that they were impacted by it I do not believe that a one-time affair would impact a custody situation all that much.
If however, the situation with the cheating was such that they were repeated X / a long period that your children were made aware of then I could see cheating impacting your divorce when it comes to a few different areas regarding custody. When you talk about custody issues we are talking about conservatorships. Conservatorship rights and duties extend to your ability to care for your children, make decisions for them, and your duty to care for them. For the most part, parents after a divorce share nearly equally in conservatorships rights and duties. However, cheating over an extended period may cause some disruptions to this area of your case.
When it comes to conservatorships issues, a judge would be making decisions based on what is in the best interest of your child. The judge will look at how their decisions impact not your life or that of your spouse but the lives of your children. If it is apparent that the choices your spouse is made are not in the best interest of your child then it would follow that a judge would not expect him or her to be able to make decisions in your child's best interest. Especially when you have displayed a history of doing so.
But this may mean for your case is that a judge would be less likely to name your spouse as the primary conservator of your child. A primary conservator would have the right to determine the primary residence of your kid, make more independent or exclusive decisions on behalf of your child, and also received child support on behalf of your child. This is the most meaningful distinction that can be drawn between you and your spouse in terms of your conservatorship's rights and duties.
It would not make sense for a family court judge to name your spouse as the primary conservator absent other evidence or circumstances. Everything else is equal it is likely that a family court judge good name you ask primary conservator of your children especially if that is a role you have fulfilled to that point in history. I'm not saying that your spouse will have all their parental rights taken away and will not be able to see your children if he or she has cheated on you. What I am telling you is that it is an important circumstance to consider for a judge especially when your children have been exposed to cheating on an ongoing basis.
Another aspect of this discussion that I think is worth having is regarding your spouse being able to have unrelated persons in their home when your children are with your spouse. It is common after a divorce for there to be something included in your orders that require any unrelated person to be out of the house the truly hours of 6:00 PM and 6:00 AM. Essentially, this protection would prevent someone from spending the night with your spouse after the divorce. If your spouse marries then that protection would no longer apply.
What it would do is allow for your children to have some protection against being a part of anything inappropriate on the phone after divorce. Admittedly, your spouse may break this rule in the future and it may be relatively difficult to prove that violation of the order has occurred. However, I could see, in the instance of ongoing cheating in the past, that this type of order is strengthened by not allowing an unrelated person to come into the home at all when the children are present. This may seem to be extreme at first glance but bear in mind and if the cheating has been extreme then a result might be that the response from the court may be equally as extreme.
Division of Community property after incidents involving cheating
The other area of your divorce that may be most acutely impacted by infidelity is regarding your community estate. When I say that Texas is a Community property state I mean that property acquired during your marriage is presumed to be found fully and completely by both you and your spouse. It doesn't matter who purchased the property, who earns more money, or whose name appears on the receipt or title to the property. This is significant if, for example, you own a home with your spouse but your name does not appear on the title. So long as the home is purchased during your marriage it will be classified as Community property.
Community property is divisible in a Texas divorce. This is where a factor like an infidelity may play a role. For starters, you can allege that your divorce is occurring because of your spouse's infidelity. Asserting fault grounds for divorce based on infidelity is not uncommon. If the judge agrees with you that infidelity and adultery played a central role or the defining role in your divorce then the judge can consider this when dividing up Community property. It is not at all uncommon for Community property to be divided up disproportionately when the country is in the picture.
Another factor to consider is whether or not your spouse gifted money or other property to their partner during your marriage. Consider items like jewelry, vacations, meals out, hotel stays, or other consumer items. The extent to which this kind of behavior occurred may determine what sort of wasting of community assets took place. The more significant the wasting that a Kurd means the more you may be in line 2 be reimbursed out of your spouse's share of the community estate. This is a very important factor to consider and as a result, I would recommend you follow through with your attorney to discuss this matter in greater detail.
First, you should do whatever you can, within the bounds of the law, determine what sort of property has gifted to this other person. If you can determine through receipts, checking account ledgers, and things of that nature that a substantial amount of money has been spent in this person I would recommend documenting it and then organizing it as best as possible to both present to your spouse and their attorney and then also a judge. The more clear your documentary evidence is the better chance you have to be reimbursed for money spent on this other person.
The other aspect of this discussion would be that you and your attorney could start to think creatively regarding how this sort of evidence could be used to help negotiate through a division of your community estate. For example, you could attempt to negotiate for a larger share of your community estate even before it comes time to attend a trial. The more substantial and well-organized your evidence is regarding the cheating means that your spouse will likely be more willing to negotiate with you in good faith. If he or she thinks that the evidence is spotty or inconclusive then he or she may be less willing to work with you.
Do not enter into your divorce thinking that infidelity will be your silver bullet
I have worked with many people over the years who enter into a divorce with the assumption that the family court judge will utilize evidence of infidelity or cheating as the most important factor in his divorce. Their reasoning is almost always that because the infidelity was so hurtful and so impactful on their marriage that a judge won't be able to help themselves but to throw the book at their spouse due to their bad behavior. We've all seen movies and television shows where spouses who are in this position have been held accountable by judges in divorce cases.
As we have already discussed, this may not be your experience. The fact is that infidelity and cheating are certainly important especially if you allege adultery as a fault ground for your divorce. If the adultery and cheating were substantial, malicious, and were exposed to your children then I think the judge will be more likely to view his actions harshly and provide you some benefit for having gone through them.
On the other hand, I would not go into your divorce under the assumption that adultery will be the most important factor in your case. It certainly can be but I would not fail to prepare based on an assumption that the divorce judge will look favorably upon you out of pity or empathy. You still need to prepare for a divorce as diligently as possible no matter what your particular factors circumstances are. Cheating is never right but the impact on your case may be negligible depending on your specific circumstances.
Questions about the material contained in today's blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today's blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultation 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 about how your family circumstances may be impacted by the filing of a divorce or child custody case.