Getting a divorce is an emotional time for anyone involved. The issues between spouses that led to the divorce may not be the same issues that matter once the divorce goes to court. It can seem unfair that a cheating spouse doesn’t get punished for breaking up the marriage in the court’s decision about sharing the children or splitting up the property. So, when does adultery matter in a Texas divorce?
What is legal adultery?
The first issue is to understand what exactly constitutes adultery from a legal perspective. Many people believe that texting, kissing, petting or other intimate acts constitutes adultery. While those acts may be considering cheating on a spouse to warrant getting a divorce, those acts do not qualify as adultery in Texas. Texas law requires actual proof of intercourse to rise to the level of legal adultery. Direct evidence of those acts might include a confession, or a child born to another person outside of the marriage. Evidence that makes a person surmise that two people are having sex is only enough if it clearly and convincingly proves the matter.
Even if you can prove adultery, does a court even care?
Texas is a no-fault divorce state, which means that parties may be divorced based on irreconcilable differences. A divorce may be granted in favor of one party or the other based on fault grounds such as adultery. Mostly, this is a hollow moral victory.
A judge may consider fault grounds in a divorce as one of the equitable factors in dividing the assets of the marriage. A judge might give a small percentage above a 50% split of the assets to the innocent spouse. So, if the marital estate totals $100,000, for example, a judge might award $55,000 to the innocent spouse and $45,000 to the guilty spouse.
A judge may also consider money spent on a girlfriend/boyfriend during the marriage in the split of the marital property. Because those funds were spent against the interests of the other spouse — called a breach of fiduciary duty — a judge may award that asset to the guilty spouse and compensate the innocent spouse with an award of other assets to offset the money that is no longer in the estate.
A judge may also consider a spouse’s negative parenting behaviors in determining parenting rights and duties and time split. If the affair has been shielded from the children, it won’t likely affect the parenting schedule. On the other hand, if the children have been exposed to the girlfriend/boyfriend and that has had a negative effect on the children, then the judge can take that into account and restrict the parent’s rights or time with the children.
Is it worth it to prove adultery?
As you might suspect, proving adultery can be difficult. Catching people “in the act” can be very expensive because it often requires hiring a private investigator who has to catch just the right moment on camera. Plus, cheating behaviors aren’t done in the public eye so even a PI might have a hard time getting enough evidence to prove it happened.
There isn’t a law providing compensation for money spent to prove adulterous behaviors. The small percentage difference in the property division is likely also not sufficient to cover the expenses of getting the proof for court. Plus, a spouse may contest the adultery finding, requiring great effort on behalf of the attorney to take the issue to a trial, which would increase the attorney’s fees spent on the issue. All of that to say that the expense of proving adultery is rarely worth the benefit in a divorce case. While the cheating behavior may cause divorce, most judges are unlikely to find that it makes a significant difference in the outcome of the division of property or parenting issues.
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