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What happens when cheating and adultery lead to divorce in Texas?

What Happens When Cheating And Adultery Lead To Divorce In Texas?

Infidelity is commonly cited among the top reasons for divorce. Some say that anger and resentment lead to spouses seeking out other people for attention and approval. What may seem like an innocent friendship can turn into an emotional affair, and sometimes a physical affair. The emotional affair alone can cause significant damage leading to divorce. In Texas, there is a general no-fault ground for divorce, and alternatively a spouse can allege adultery as grounds for divorce. If adultery is proven, the cheating spouse might receive a reduced share of the community property, and a less favorable custody order when there are children of the marriage. In many cases of cheating spouses there is a concern for the wasting of community property when one spouse spends marital money on their paramour. Ultimately, it depends on the parties to the divorce whether the issue of infidelity becomes a weapon in litigation.


Grounds for Divorce in Texas

Texas is among many states with no-fault divorce grounds. In the Petition for Divorce the party seeking the divorce alleges that ?the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.?

In addition to Insupportability, there are additional fault-based grounds upon which a divorce can be sought including: Cruelty; Adultery; Conviction of a Felony; Abandonment; Living Apart; Confinement in Mental Hospital.


Discovering and Proving the Affair

In Texas, adultery requires sexual intercourse and anything less is not legally considered adultery for purposes of proving the fault-based ground for divorce. In court, adultery must be proven by clear and convincing evidence, which can be direct circumstantial evidence. When spouses observe a change in activity and the behavior of the other, some ask and find out about an affair and others get their answers by hiring a private investigator. Note that proving the adultery of the other spouse is only necessary when adultery is a ground for divorce.


Impact of Adultery on Property and Custody

If adultery is proven by clear and convincing evidence, the court may award a greater share in the division of community property or identify certain property as separate and not subject to division. As to contested child custody decisions, the court considers what is going to be in the be in the best interest of the child. In weighing the evidence presented, the spouse proving adultery can seek a more desirable custody determination where the cheating conduct of the other spouse is not something the child should experience.


Wasting of Community Assets

When one spouse spends marital community money on another with whom they are carrying on an affair, the cheated spouse may make a claim to have the community estate effectively recompensed for the wasting of marital money on an affair. This is a separate issue from adultery as alleged as a ground for divorce. Adultery does not need to be proven to establish the wasting of community assets, which might involve an emotional or physical affair that does not otherwise qualify as adultery.


Determining Your Strategy with Your Lawyer

An experienced divorce attorney will help you determine the best course of action based on the facts and evidence presented. You may decide it makes sense to hire a private investigator, or a forensic accountant who can help trace the misuse of funds. It is important to ask oneself whether it is worth it and has value to allege and prove adultery or simply proceed with the divorce on a no-fault basis. Note that once adultery is alleged, it may be received as a declaration of war. If a less contentious divorce may yield better results, it should always be at least considered.



Considering divorce? Get started today with an initial consultation by calling (469) 626-5220.


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*Mark L. Scroggins is *board-certified in family law by the Texas Board of Legal Specialization. Unless otherwise noted, other attorneys are not *board-certified.

**Super Lawyers (a Thomson Reuters service, awarded to Mark Scroggins 2014, 2015, 2016, 2017, 2018, 2019, 2020, 2021)

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