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Cheaters never prosper: Adultery and affairs

The title to today's blog post is something that we all probably said a time or two when we were kids. We maybe didn't use the phrase exactly, "Cheaters never prosper," but the general idea is something we probably shared with an opposing sports team, our sibling while fighting over a board game, or cousins at the annual Thanksgiving backyard football game. The point is that nobody likes to be cheated. The feeling of being taken advantage of does not change as you get older. If anything, it intensifies as we age because our life broadens and the potential cheating can have a more profound impact on our lives. 

You are probably here today reading this blog post because you either have been or believe that you have been cheated upon by your spouse. This is the most profoundly hurtful and disappointing kind of cheating. The person that you made a promise to stay with forever is now going back on their word. To find that out is frustrating, sad, and anger-inducing all at the same time. There is something about getting cheated on in a particularly tough relationship. Add to that the possibility that you and your spouse have been married for years and have children and the stakes are raised even more. 

If you have been cheated on and feel that you need to file for divorce the attorneys with the Law Office of Bryan Fagan are here to help you. While we may not know your specific circumstances as of yet, we do know about adultery and how it can impact a Texas divorce. That is what we are going to share with you today- how adultery can impact your case from multiple angles. Whether you have children or not, and whether you have a substantial community estate or not, today's blog post will be helpful because we can share with you some tips and tricks that are designed to help you approach your divorce with an eye toward adultery and how it can impact your family and your finances. 

At the end of reading this blog post if you have any questions about what we wrote or about your circumstances please contact the Law Office of Bryan Fagan. We have three Houston area office locations where our experienced attorneys can meet with you to answer questions and listen to you and what you are going through. These are free consultations that can help you to understand the law better and how the law impacts your family and divorce. 

Will the infidelity of your spouse impact your divorce?

In and of itself, adultery does not impact issues regarding child custody or conservatorship. Taken in vacuum adultery is certainly not going to be something that causes your spouse to look good, but it will not, at the same time, be the sole driving factor to put you in a more advantageous position when it comes to child custody or conservatorship issues. However, when we look at the exact circumstances that you find yourself in with adultery that answer may change somewhat. 

Adultery can begin to have an impact on your divorce when the adultery has had an impact on your children. For instance, has your spouse shown not only a propensity to commit adultery but to place that person above his or her children? As in, has your spouse repeatedly chosen to spend time with their love interest rather than your children? Has he or she missed sporting events, school activities, or family events because of an affair? If so then this is a straightforward situation that will impact issues related to your children. 

Next, a family court judge would be interested in knowing whether your children have ever met your spouse’s paramour. Some spouses that engage in adulterous behavior do so in secret. Other times the person is more open about the relationship for whatever reason. For example, if your spouse has been in a relationship for some time but has kept it a secret he or she may finally introduce your children to the other person once your divorce starts. The motivation to do this during the divorce is an incorrect assumption that adultery doesn’t count once the divorce begins. 

However, in a Texas divorce, there is no legal period of separation that causes the rules of marriage to be permanently suspended. Rather, you will be legally married to your spouse until the judge grants the divorce and signs your Final Decree of Divorce. Otherwise, you will still be married and still potentially liable in the divorce for any affair that you carry on. Especially damaging in this regard is introducing your children to this other person while you are married. Children will have a hard time processing what is happening, especially younger children. 

Having to talk with your kids about the uncertainty that comes with a divorce as well as introducing them to your new significant other is a recipe for disaster. Beyond the impact that it can have on your divorce, it can have a profoundly negative impact on your children. There are ways to talk to your children about divorce and your being in a new relationship. However, doing both things at the same time is not a wise plan. Rather, you should consider not dating during the divorce to minimize distractions and to focus on your children and your case- in that order. 

Making decisions in the best interests of your child

The best interest standard is widely applied across the United States when it comes to family law cases. The bottom line is that parents are presumed to be acting in the best interests of their children when it comes to the decisions that they make. However, evidence can be introduced that would bring that presumption into question. Being engaged in an adulterous affair and then bringing that person into the lives of your children can be evidence enough to cause a judge to believe that your spouse is not putting the best interests of your child first in their lives. 

There are a lot of different ways we can look at this situation but here are two that I think are most critical in conjunction with your divorce. First and foremost, I think that child custody can be impacted by your spouse being awarded less time with your child than he or she otherwise would have. If your spouse wants to be able to have a 50/50 split in possession time with you then his or her involvement with the kids will be scrutinized closely by the judge. Choosing in the past to spend more time with a significant other over your children certainly will not help your spouse’s case in this regard. 

Another consideration that needs to be mentioned here is that if you and your spouse are both trying to be named as the primary conservator of your children then having an affair can be more than enough to knock your spouse out of the running for this important designation. The primary conservator, among other things, lives with your children primarily and can receive child support. If your spouse shows the sort of poor judgment to have an affair and then introduces your children to the other person, then they will probably have no opportunity to be named as the primary conservator. 

By the same token, just because your spouse has an affair does not mean that a judge would completely remove any parenting time with your kids from his or her schedule. I have had parents who have been cheated on come in to talk with our attorneys and tell me that they will expect to have their parental rights terminated or at least have their visitation reduced nearly to zero. While I can appreciate and understand the sentiment, the reality of the situation is that a judge is not going to do either of these things, most likely. While a reduction in parenting time may be possible a complete removal of parenting time is extremely unlikely in most circumstances. 

In other words, a judge will look at the specific circumstances in your case and decide how the cheating has impacted your child. Would you be able to produce evidence to show that your child has been traumatized or harmed significantly because of the cheating? If so, then you may be able to gain an advantage over your spouse when it comes to custody and conservatorship proceedings. However, you also need to balance this benefit against the potential harms that can befall your child from being made to be a center point of a divorce. Even if your child never has to participate in the case, there is still the knowledge that he or she is playing a role in their parent's divorce. You know your family better than anyone and should assess the circumstances with an eye toward all relevant factors. 

How does adultery impact spousal support, if at all?

Whereas some states seem to hand out spousal support like candy, Texas family court judges typically are more discerning when it comes to the subject of post-divorce spousal support. One of the reasons why this is the case is that Texas is a community property state that typically affords spouses a more equitable share of marital property than other states. The theory is that if your spouse receives a fair amount of community property that will act as a substitute for spousal support because the property could be sold to help a spouse who hasn't worked to keep their head above water until they can find a job after the divorce. 

To receive spousal maintenance after a divorce you must first be eligible to receive these sorts of payments. Eligibility depends upon two important factors. The first of which is that you must be able to show that you cannot meet your own minimum basic needs without the assistance of spousal maintenance. Note that minimum basic needs do not mean that you will be able to live the lifestyle that you’ve led throughout your life or that you can live in the manner to which you’ve been accustomed for some time. Rather, you must show a family court judge that you are unable to meet your four walls (rent), food, utilities, and the cost of other essentials. This is a high bar to clear for most people considering that most people work at least on a part-time basis. 

If you have never worked outside the home because you were a stay-at-home spouse or parent, then you may be able to receive a payment of spousal maintenance as a result. Spousal maintenance can be a great tool to help you bridge the gap between your marriage and being a single and independent adult. The idea that you will be able to receive spousal maintenance for an indefinite period is unlikely, but it is also possible that you can receive this spousal maintenance for as long as it takes you to get on your feet after a divorce.

If you are unable to meet your minimum reasonable needs then you must also show that one of the following circumstances is also relevant in your life. First, your spouse would have had to have been convicted of or received deferred adjudication for a family violence crime against you or your child. Additionally, the family violence crime would have had to have occurred no more than two years before the date on which your original divorce petition was filed. Hopefully, this is not a situation under which you would qualify for spousal maintenance. However, if you have unfortunately been a victim of domestic violence, or your child has, then this is a way to see that you receive the money.

Next, you would have to suffer from a physical or mental disability that does not allow you to earn an income independently. If you are suffering from some impairment but are capable of working and do earn enough money to meet your minimum reasonable needs, then you would not be able to qualify under this factor. However, if you are unable to work and cannot meet your basic bills then you should consider submitting evidence to that effect. Trying to be a hero and not qualify based on a legitimate impairment or disability does not make sense. Your life after the divorce may hang in the balance. 

The third criterion would be the most common argument for a person in your position to make. Simply put, you and your spouse were married for at least ten years, and you cannot earn enough to meet your minimum basic needs. Additionally, you need to show a judge that you have done your best to be able to attempt to earn enough to not need spousal maintenance but were unable to do so. This could meet applying for work during the divorce and being turned down time and time again. It could mean trying to complete a degree of vocational study but needing more time to do so. Sitting on your backside and then telling a judge because you were married for 15 years that you should be paid spousal maintenance is not a winning strategy.

Finally, the last circumstance that you would be able to argue is that you are the primary caretaker for a child, minor or adult, who suffers from a disability and needs substantial care and personal supervision that prevents you from being able to work and earn enough money to be able to meet the minimum reasonable needs of your family. 

Then, the judge will look to additional factors that are related to the above circumstances to determine how long and how much spousal maintenance you need to be paid. Things like your financial resources and that of your spouse will be viewed. Are you a stay-at-home parent while your spouse is a doctor or other professional? Maybe you aren’t a person with a great career, but do you have a substantial amount of separate property that could be liquidated and the profits utilized to meet your minimum reasonable needs? 

Your ages also matter when it comes to determining the need for spousal maintenance. If you are young and healthy then it is conceivable that you could go out and find work that can meet your minimum reasonable needs. This is especially true in an economy like we are now where employers are desperate for bodies. Big box stores are paying as much as $20/hour for shift work. However, if you are an older individual then you may not be able to immediately slide into well-paying work. Your age and health are two factors that will go a long way toward determining your ability to work and your ability to receive spousal maintenance. 

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 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 as well as about how your family's circumstances may be impacted by the filing of a divorce or child custody case. 

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