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Q&A: Infidelity in the Marriage Relationship

Infidelity in the Marriage Relationship, aka Adultery. You or your spouse had an affair outside of your marriage. Now it’s out in the open and your marriage is untenable. You’re either thinking of divorce or you’ve already started the process. Here are the top questions we get concerning adultery:

Q: What are the “Grounds for Divorce” and what do they mean to me?

“Grounds for divorce” is the legal reasoning for the breakup of the marriage. A Texas court must reach a finding for the grounds for a divorce in order to grant the divorce. The “grounds” must be either “no fault” or “fault” based. The Texas Family Code provides an exclusive list of the recognized grounds for a divorce in Texas.

Q: What Grounds for Divorce are listed in the Texas Family Code?

The Texas Family Code recognizes the following grounds for divorce: first, there is the “no fault” grounds of In supportability. Then there are the “fault” grounds of Cruelty, Adultery, Conviction of Felony, Abandonment, Living Apart, and Confinement in a Mental Hospital.

Q: What does “no fault divorce” mean?

No fault divorce means that, under the eyes of the law in Texas, neither spouse did anything wrong to cause the breakup of the marriage. Rather, the marriage itself simply became insupportable. Note that this is a legal concept, not a moral or spiritual judgment –  both of which would be outside of the purview of the courts. The very first “grounds for divorce” listed in the Texas Family Code is In supportability, the only no-fault reasoning for a divorce. The wording of the In supportability statute states:

“On the petition of either party to a marriage, the court may grant a divorce without regard to fault if 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.”

Stately differently, the spouses simply can’t get along, so the marriage has failed. The vast majority of Texas divorces are granted on the grounds of In supportability. Very few divorces are granted on a basis of fault.

Q: Has Texas always recognized no fault divorce?

No! Up until 1970, Texas law mandated that a divorce could only be granted if there was some fault in the cause of the breakup. The grounds were abandonment, adultery, conviction of a felony, cruel treatment, or living apart. This strict requirement of fault often led to issues of lying to the court and other bad behavior, just to achieve a split that both spouses might have wanted, anyway. Thankfully the law has changed. Since 1970, Texans have been able to have their divorce granted on the grounds of In supportability, which essentially assigns no fault in the cause of the breakup.

Q: Is texting adultery? What is adultery in the eyes of the law?

The Texas Family Code states that, “The court may grant a divorce in favor of one spouse if the other spouse has committed adultery.” But the Code does not define adultery. For that, we can look at what the courts have said. One leading case stated: “Adultery is defined as the voluntary sexual intercourse of a married person with one not the spouse…” So mere phone calls or messaging do not rise to the level of adultery or “fault” in the breakup. Physical, in-person sex must occur in order for a court to find that there was adultery. Online activity or texting would not rise to the level of adultery under the current case definitions in Texas.

Q: Could there be a finding of adultery if the spouses have separated but are not yet divorced?

There can be a finding of adultery after separation. One leading court case stated, “[adultery] …is not limited to action committed before the parties’ separation.” So, it is possible that a court could find that adultery has occurred after the couple separates but prior to the divorce being granted!

Q: What does it take to prove adultery?

Proving adultery in court must be “clear and positive” by “direct or circumstantial evidence.” One court has stated that “mere suggestion and innuendo are insufficient.” A finding of adultery is a fact-driven issue and what might suffice as proof in one jurisdiction might not be enough proof in another jurisdiction. A leading court decision in this area states that “a trial court may consider fault of one spouse in the breakup of a marriage but is not required to do so.” Thus, a lot of effort might be made to prove adultery but to no effect. There’s no guarantee that a court will do anything about infidelity!

Q: What difference does it make in the divorce if adultery is proven to the court and the court ‘grants a divorce in favor of one spouse’?

The likely outcome in court is driven by the jurisdiction and the exact set of facts. An isolated incidence of cheating in an otherwise uneventful divorce is unlikely to change much in any court, especially a busy court in a highly populated jurisdiction, such as Harris County. However, a repeat offender who also spends community monies on having affairs is likely to experience some repercussions from the court. These repercussions will be manifested in the division of the marital estate and might therefore extend to spousal maintenance, as well.

Q: How does the court normally divide property and how might adultery affect that?

Texas divorce courts are charged with a “Just and Right” division of the marital estate. The Texas Family Code reads:

GENERAL RULE OF PROPERTY DIVISION. In a decree of divorce or annulment, the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.”

Stemming from the statute, in making a “just and right” division of the community estate, the general rules are that: a) the court has wide discretion in dividing the marital estate; b) the court may consider abilities to earn, relative physical and financial conditions, and similar factors; and c) the division of the community estate need not be equal, and the court may weigh many factors in reaching its decision.

Most property divisions in most Texas courts are going to be made as an even fifty-fifty, with each spouse getting half of the marital estate. A finding of adultery alone – without any other fault- might tip the scale a bit toward the non-offending spouse, but those types of awards tend to be relatively small, usually on the order of around five percent, yielding a 45% – 55% split of the marital estate.

Q: Can adultery be used against me when it comes to my kids?

Ordinarily, no. It would be very rare that a court would equate a cheating spouse with being a bad parent. This can be a very difficult concept for some non-offending spouses to accept but it is reality. The Texas Family Code clearly states that the presumed and preferred custody arrangement is for Joint Managing Conservatorship of the children, without regard to the sex of the parent.  An affair outside of marriage does not create a bar to Joint Managing Conservatorship (joint custody.) As a for-instance, if one spouse cheated while the kids were in school, it would be difficult to show how the kids were exposed to any danger from the cheating. Again, Texas courts must take a purely legal stance, regardless of cultural, moral, or religious norms.

Q: Does jurisdiction matter in proving adultery to the court or in dividing the marital estate?

Jurisdiction almost always matters. Most of the courts in large cities have very large workloads with thousands of family law cases and tend to have viewpoints that are often considered more “liberal” than some of our smaller, more “conservative” counties. These big-city courts are more likely to overlook all but the most egregious examples of cheating, whereas more conservative courts in smaller areas may tend toward harsher outcomes in such cases.

Q: What are some of the considerations in bringing an adultery case to court?

Before bringing any type of “fault” case to the court, there are some major concerns, such as:

  • How will this affect the actual outcome of the case? Bringing a “fault” case before a court is not an easy task. If there are no other bad facts in the divorce and there is but one rare instance of infidelity, the risk and effort of bringing the claim might not yield much reward from the court. Courts rarely deviate from a straight fifty-fifty split of the community estate unless there are egregious circumstances.
  • Is there enough evidence to support the claim? Remember that is takes clear and positive evidence. If there’s not enough solid evidence to support a claim that physical infidelity occurred, it might not be worth the effort of trying to being the claim, especially if there might not be any real change in the division of the marital estate.
  • How will this affect the family, both during and after the divorce? Bringing a contested “fault” claim to court will be hard on everyone- both spouses will suffer, and the hard feelings will likely trickle down to any children of the marriage. Dragging things through court rarely leads to any inter-personal healing. Unless the infidelity was extreme or shockingly unreasonable, the risk of further damage to the family might not be worth the effort- especially if there are children involved. Remember that divorcing spouses and children will likely remain in each other’s lives for many years to come; there will be marriages and grandchildren for years to come.

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