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HOW ADULTERY CAN AFFECT A DIVORCE PROCEEDING IN TEXAS – You might be surprised.
- Texas Attorney Ryan Putz
- Mar 21, 2023
- 8 min read
“Adultery means the ‘voluntary sexual intercourse of a married person with one not the spouse.’ Adultery is not limited to actions committed before the parties separated.” [i]
Texas does not legally recognize “separation” of the spouses. Spouses are presumed to be married until they are divorced. A Texas court can make of finding of adultery against a spouse after the spouses are separated and prior to granting the divorce.
Texas is a no-fault state. This means that either spouse can request and obtain a divorce in Texas on the “no-fault” ground of “insupportability.” [ii] Basically, if one spouse says that the marriage is over because of discord or conflict of personalities and reconciliation is not what they want, then a Texas court may grant the divorce on the ground of “insupportability.” In addition to the "no-fault" ground for a divorce, a Texas court may grant a divorce on alternative “at-fault” grounds, one of which is adultery. [iii]
A spouse that pleads an “at-fault” ground for divorce, such as adultery, has the burden to show evidence that would prove the adultery. The evidentiary burden of an "at-fault" ground is typically going to be more difficult to prove than a “no-fault” ground for divorce (notwithstanding the other spouse’s admission of fault). For example, if the spouses merely take the stand and provide contradicting testimonial evidence (the ol’ he said she said), the adultery claim is likely to fail. This is not the case if a spouse seeks a divorce on the “no-fault” ground where despite the testimony and evidence of the opposing spouse, the spouse seeking the divorce can simply testify that the marriage is insupportable because of discord or conflict of personalities and that reconciliation is not something the spouse wants to pursue.
Seems kind of silly, right? Why would a spouse ask for a divorce on the ground of adultery, which requires significantly more evidence to prove than a “no-fault” ground divorce? The simple answer is that a finding of adultery against a spouse can impact the division of marital property and may affect custody and possession of the children. Each one of these areas are further explained below. Additionally, the “no-fault” divorce ground may be plead in the alternative as well, so in the case a spouse is unable to prove adultery, they have the alternative “no-fault” ground as a fall back.
DIVISION OF MARITAL PROPERTY – WHEN FIGHTING A CLAIM IS MORE COSTLY THAN ADMITTING IT.
Division of property in a divorce proceeding is mandatory under the Texas Family Code, and a trial court must not sever the issue of divorce from the issue of property division. [iv] Property division need not be equal but must be equitable. In a fault-based divorce, such as adultery, a trial court may consider the conduct of the adulterous spouse when making a disproportionate distribution of the marital estate. [v] It is important to note that a trial court has discretion, it’s not mandatory, to whether fault is considered when dividing property.
Even though the court is given discretion to consider a spouse’s adulterous actions when dividing property, it has been my experience that when a court factors in the adulterous conduct of a spouse, the resulting effect is typically a 5% - 10 % off-set in the division of marital property against the adulterous spouse. This is not to say that a court will not award a greater disproportionate share when they consider adulterous behavior, as it is case specific and dependent a number of factors such as the amount and extent of the marital property that is subject to division by the court. Greater disproportionate awards of property tend to occur when multiple “at-fault” grounds are proven by a spouse, such as adultery and cruelty (which this article is not addressing). So, in my experience, if adulterous behavior is the only “at-fault” ground considered by the court, the claimant spouse/adulterous spouse division is likely to result in a 55% /45%, or on the higher end 60% /40% disproportionate division of marital property in favor of the claimant spouse.
However, when a claimant spouse is able to show that the other spouse used community funds of the marriage in their engagement of adulterous behavior (e.g., plane tickets, hotels, gifts), a court is likely to find the adulterous spouse’s use of the funds as fraudulent and a waste of community assets. Wasting of community assets and fraud are likely to result in disproportionate awards that are on the higher end of the range, and possibly more depending on the amount of funds wasted by the adulterous spouse.
Now, every situation and case is unique, and the examples I provided above may not be applicable to your specific situation. As mentioned earlier, courts have discretion when determining a disproportional division of property, and you never know what a judge might do at the end of the day when given this kind of discretion. Consult an experienced family law attorney to discuss your specific situation. This is important to understand because if you are a spouse being accused of adultery, fighting the claim might cost more than just admitting to it. Additionally, if you are spouse claiming adultery, it might cost you more to pursue the claim than what you might be awarded.
HOW DOES ADULTERY AFFECT CHILD CUSTODY IN TEXAS?
Short Answer: Adultery does not affect child custody in Texas. The child’s best interest are how Texas courts decide custody arrangements.
BEING A GOOD SPOUSE vs. BEING A GOOD PARENT
The parenting abilities of a spouse are significant factors considered by a court when determining child custody. This means that adultery does not typically affect a custody decision. However, in some situations, an affair can reflect poorly on a spouse’s judgment and decision-making ability, in which the adultery is likely to affect the custody determination. An instance where an affair by one spouse can have significant negative implications on the outcome of custody is when a spouse intentionally exposed the children to the affair in a way that was shown to be harmful to the children.
STORY TIME…
Several years ago, I represented a client at a temporary orders hearing involving a divorce with children. The big issue before the court this day was which parent should be awarded the temporary right to designate the primary residence of the children, a/k/a “primary parent-conservator”. My client was the dad, and he was also being accused of adultery. For many, including myself at the time, would assume this was going to be a rough day in court. However, my client was awarded primary conservatorship of the children. How did that happen? Well, my client and I presented a well-thought-out case that demonstrated my client’s parenting abilities, including his stability, family support, involvement in children’s activities and school, and overall positive impact on the children’s life. We showed the court that the affair is not relevant to this issue and should not be considered because the affair did not affect dad's parenting abilities, nor did dad's involvement with the affair affect the children. Basically, we conceded to being a bad spouse, but showed that had nothing to do with being a good parent.
On the other hand, mom and her counsel seemed to think the big issue that day was getting my client’s admission to the affair, and then continuing to focus on the affair throughout the hearing while putting forth little evidence to show it was not in the best interest of the children for my client to be the primary conservator of the children. Mom argued that dad’s adulterous actions were a bad example to set for the children. Unfortunately for mom, the children only knew about dad’s affair because mom thought it was a good decision to tell the children how bad of a person their dad was because dad's cheating is why mom has to break the family apart. Mom had violated the temporary restraining orders of the court that prohibits the parties from discussing the litigation with the children. Additionally, it would come to light that mom routinely made disparaging remarks about dad to the children, which is also a big no-no and violation of the temporary restraining orders. Even if mom is right about the affair being the reason for the divorce, there is a time and place to have this discussion with the children - the time and place is not during the divorce proceeding.
Dad might not have been a good spouse, but that did not make dad a bad parent. So, even though dad admitted to the affair, dad’s adulterous actions did not affect the children because the children did not have knowledge of the affair (until mom told them after filing for divorce); the children were never exposed to dad’s adulterous actions (until mom told them after filing for divorce); and dad showed he was best suited and able to care for the children. Mom’s attempt to focus on dad’s affair, rather than focus on the best interest of the children as it relates to her parenting abilities, was shown to be detrimental to her pursuit of primary conservator.
KNOW WHEN TO HOLD ‘EM AND KNOW WHEN TO FOLD ‘EM.
Division of marital property is an issue decided by the court at final orders, not at hearing for temporary orders. In the above example, mom did not know when to “hold ‘em”, rather mom went ‘all-in’ with the affair at the temporary order hearing because she did not understand the effect of the affair as it relates to custody. By doing this, mom not only subjected herself to the violations of the temporary restraining orders, but she also put herself in a position of weakness going into final orders where the affair in this case was most relevant. Dad knew when to “fold ‘em” by admitting to the affair and not letting it be a distraction to the issue at hand. Dad understood the effect of the affair in this case.
Now in the above example, if dad had exposed the children to the affair and adultery, it would have made sense for mom to maintain the court’s attention on this behavior as it tends to show poor parenting ability and is not in the best interest of the children.
It is difficult to set aside emotions in a divorce proceeding, especially when children are involved. I cannot stress enough the importance of seeking appropriate legal counsel for your divorce proceeding. At minimum you should speak with the actual attorney that will be handling your case before deciding to retain a firm or attorney. You should feel comfortable with that attorney, and you should feel you received logical explanations to your questions. Retaining the wrong legal counsel can cause additional stress to an already stressful and challenging time. It does not have to be that way if you do the work up front and find a knowledgeable divorce attorney that you are comfortable working with.
Do not wait until it is too late, schedule your consultation for your divorce or family law matter today. Contact the Law Office of Ryan Putz and get the representation you need and deserve!
PHONE: (281) 206-2696
EMAIL: ryanputzlaw@gmail.com
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