Last Updated on March 19, 2023 by Benson Varghese
Cheating is a leading cause of divorce in Texas, but can adultery affect divorce proceedings? The short answer is, it depends. In Texas, there are two types of divorce: fault and no-fault. What type of divorce you pursue determines whether or not infidelity plays a role in the outcome or settlement of your divorce.
Here are answers to some frequently asked questions about adultery and divorce in Texas, but first please watch this video from family law attorney Turner Thornton.
What is a no-fault divorce in Texas?
Texas is considered a no-fault divorce state, which basically means neither spouse has to prove wrongdoing to be granted a divorce. You can get divorced without giving a reason or explanation at all, by just citing “insupportability. Most divorces in Texas fall into this category, which is also referred to as an uncontested divorce. Most judges split marital assets equitably in a no-fault or uncontested divorce.
What is a fault-based divorce in Texas?
Although Texas allows for no-fault divorces, it also recognizes a number of “grounds” for divorce, including cruelty, felony conviction, abandonment, mental confinement, living apart, and adultery. Citing a reason or a ground for divorce can be advantageous to the wronged party. The court may consider fault when determining how to divide property and assets.
What is adultery?
Adultery is defined as voluntary sexual intercourse with someone besides your spouse.
Adultery and divorce: Can infidelity affect divorce settlements in Texas?
Yes. If you are able to convince a judge that your spouse’s cheating is the ground on which your divorce should be based, you could be awarded a greater share of the marital property. So, for example, if your spouse cheated during the marriage and you can prove it, the judge could divide 55/45 or 60/40, especially if there is a disparity in earning capabilities or your spouse spent marital money on their outside love interest.
In Texas, the family code requires a “just and right division” of community property which gives the judge discretion when dividing property and assets between divorcing spouses. It’s also not uncommon for a judge to order the cheating spouse to reimburse the innocent spouse for “wasted community assets” – money spent on a paramour for dinners, hotel rooms, trips, jewelry, etc.
Can adultery affect child custody in Texas?
When determining child custody and visitation, the judge is focused on the children’s best interest and the parenting abilities of each spouse. As a result, infidelity usually does not affect child custody or visitation. However, if the judge believes that your spouse’s adultery was harmful to the children or that the cheating spouse is putting the new relationship over the kids, it could play a role in child custody or visitation decisions.
Do you have to prove adultery in divorce proceedings?
Yes. Unless your spouse admits to adultery, you will have to prove that the breakdown in the marriage was the result of an affair. You can present circumstantial evidence such as:
* Text messages or emails
* Pictures or videos
* Eyewitness accounts
* Bank records or credit card statements
To find out what kind of evidence is admissible in court and how to legally obtain it, it’s best to speak to an experienced divorce attorney.
Seeking to divorce your cheating spouse? Contact us.
Unfortunately, adultery and divorce are two words that often go together in Texas and across the country. If you are considering filing for divorce based on fault – specifically, adultery – it’s important to seek the guidance of an experienced divorce attorney. We can help. The team at Varghese Summersett Family Law Group will listen to the facts and circumstances of your situation and walk you through all available legal options. We will explain the advantages and disadvantages of filing for divorce based on adultery and patiently guide you through this highly- emotional time. We will make sure your interests, assets, and children are protected every step of the way. Call 817-900-3220 to schedule a consultation and get your most pressing questions answered about adultery and divorce.