Adultery and Its Impact on Property Division in Texas Divorces

A cheating spouse in Texas hasn't necessarily committed adultery.
By law, it takes more than kissing or touching to commit adultery. Such activity might constitute cheating for you, but not in a Texas courtroom. At least not to meet the definition of adultery.

Adultery is referenced in Texas Family Code § 6.003 but is not defined. The state's definition is based on case law as the voluntary sexual intercourse of a married person with someone other than their spouse. The spouse who was cheated on must prove adultery occurred for Texas courts to recognize it.

Are you dealing with a cheating spouse? Are you thinking about divorce? An experienced Fort Worth adultery attorney at Varghese Summersett Family Law Group will help guide you through your options.

In this post, we'll explain how Texas defines adultery and how, if proven, adultery can affect divorce and property division.

Evidence must show that the infidelity occurred during the marriage, which includes any time during a separation. Clear and positive proof is required to prove adultery in court, although it can be established by direct or circumstantial evidence, including emails, photos, texts, social media, and other documents.

Your Fort Worth adultery attorney will thoroughly review the facts of your case to determine the best way to proceed.

The burden of proof for proving adultery is clear and convincing, and suggestions and innuendo are insufficient to prove adultery.

Suppose one spouse seeks a disproportionate award of the community property because of adultery. In that case, they must prove to the court that the infidelity resulted in the divorce or that the cheating spouse wasted community property on the adulterous relationship.

The court will also consider the benefits the innocent spouse would have received had the marriage continued, such as income, insurance benefits, and community property.

Legal separation doesn't exist in Texas, and marriage remains until a Texas judge issues a final divorce decree. Thus, Texas courts will consider it adultery.

No. Texas law requires sexual intercourse to meet the legal definition of adultery.
Specific sexual encounters that are not precisely intercourse are not legally considered adultery.

A Fort Worth adultery attorney will help explain the legal definition of adultery in detail.

No. Kissing someone other than your spouse is not considered adultery. The same is true for groping, touching, or oral sex.

No. A spouse exchanging sexually-charged emails, texts, or photos with someone other than their spouse is not considered adultery in Texas.

No. Adultery is not illegal in Texas. However, Texas courts consider marital misconduct during a divorce proceeding. Infidelity could factor in how the community estate is divided. The spurned spouse will likely raise fault grounds for divorce, including adultery, to win a more significant portion of the community estate.

Your Fort Worth adultery attorney will investigate the circumstances of your case to determine how they could alter your divorce settlement.

Adultery can be the basis for an at-fault divorce and may affect the court's decisions in determining the division of the estate, alimony, and child custody.

A case of infidelity involving adultery in Texas would not affect child custody or conservatorship by itself. The parent's adulterous relationship would need to affect the child or the child's relationship with a parent for a judge to factor in the impact when ruling on custody.

Examples of this could include a new partner that places the child at risk, a parent prioritizing a new relationship over time with a child, or inappropriately introducing a child to a new partner.

Texas Family Law does not guarantee alimony payments, known legally as spousal maintenance, and the spouse requesting support must be eligible. Your Fort Worth adultery attorney will review the case details before advising a strategy.

To be eligible for spousal maintenance, the requesting spouse must be unable to meet their own "minimum reasonable needs," according to Texas law.

Also, at least one of the following must be true:

1. The paying spouse was convicted or received deferred adjudication for a family violence offense against the requesting spouse or the requesting spouse's child, and the family violence offense occurred no more than two years before the filed divorce petition or while the divorce petition was pending

2. The support-seeking spouse is unable to earn the minimum reasonable needs due to physical or mental disability

3. The marriage lasted 10 years or more, and the support-seeking spouse lacks the ability to earn enough for their minimum reasonable needs. Further, the requesting spouse must show they are attempting to earn enough to provide for their minimum needs; or have worked to develop skills to meet their minimum reasonable needs during the divorce proceeding.

4. The requesting spouse will have primary conservatorship of a minor or adult child from the marriage who requires substantial care and personal supervision, which prevents the requesting spouse from working enough to meet minimum reasonable needs

If the above qualifications are met, the judge reviews all remaining factors to determine the amount and duration of the required spousal maintenance. The judge also includes some of these relevant factors:

* Financial resources of each spouse;
* Employment history of the support-seeking spouse;
* Employment skills and education that would allow the support-seeking spouse to earn adequate income;
* Time duration to acquire skills and education to earn adequate income;
* Marriage duration;
* Age of the support-seeking spouse;
* The emotional and physical well-being of the support-seeking spouse;
* Excessive spending, hiding, destruction, or fraudulent activity regarding joint or community property;
* A spouse's contribution to the other's career and contributions of property to the marriage.

Proven adultery during a divorce can affect the community property division in Texas.

In short, the court could award the "innocent" spouse a greater share of the community property because of the adultery. At the same time, the judge could pin more of the debt on the adulterous party. Your Fort Worth adultery attorney needs an honest assessment of your circumstances to best represent your interests.

Community property is presumed to be all assets acquired during the marriage. Examples of what could be considered community property by a Texas court include the following:

> Bank accounts (regardless of whether they're joint or not)
> Income from employment
> House or real estate obtained during the marriage
> Vehicles acquired during the marriage (regardless of which spouse is on the title)
> Individual contributions to pension, 401K, or other retirement accounts made from the date of marriage
> Unemployment compensation and payment for lost wages

If you suspect your spouse of adultery or are contemplating a divorce, you need expert legal advice.

The Varghese Summersett Family Law Group has a combined three decades of experience helping Tarrant County residents protect their assets and navigate complicated divorces. Call us at 817-900-3220.