What Can You Ask for in a Divorce in Texas if Adultery Has Been Committed?
By Elizabeth Rayne, J.D.
In Texas, you may be entitled to a greater share of the marital assets and a more beneficial custody order if your spouse commits adultery. However, proving that a spouse cheated is not always easy and a court is not obligated to take fault into consideration in its rulings.
In Texas, you may file for a "no fault" divorce, or you may file for divorce based on fault grounds, such as adultery. In order to file for a fault divorce based on adultery, you must have evidence that the other party cheated. For this reason, many individuals instead pursue a no-fault divorce, which is allowed in every state. Instead of blaming the divorce on one party, a no-fault divorce filing claims that the marriage is insupportable due to discord and conflict and you have no reasonable expectation of reconciliation. Further, even if you do convince the court that your spouse committed adultery, the court is still not obligated to make its final ruling on the basis of fault.
If you are successful in proving adultery, you may receive more of the community property in the divorce settlement. Texas courts treat separate property, anything you owned before the marriage, differently from community property that was acquired during the marriage. Generally, each spouse keeps their separate property, while community property is divided equally in a divorce settlement. If you prove the other party's adultery was the cause of your divorce, you may ask for and potentially receive a greater portion of the community property.
The Texas Family Code does not look at fault when determining alimony amounts. Therefore, receiving alimony, or spousal support, is not automatic in Texas and proving adultery is not likely to have an impact on the court's decision. Generally, courts will only award alimony if there is evidence of domestic violence or the marriage lasted for 10 years or more and one spouse cannot financially support herself. Alimony awards usually only last for three years.
In order to prove that adultery occurred within your marriage, you must present evidence to the court. The court requires physical and credible evidence, such as emails, credit card statements and printouts of interactions on social media websites. Furthermore, it may be beneficial for your case if you can present evidence that money from community property was spent on gifts or vacations for the object of the extramarital affair. Providing such evidence may convince the court to award you more of the martial property estate.
In determining custody, the court will consider what is in the best interest of the child. You may ask for a more favorable custody order due to the other spouse's adultery, but you must demonstrate how this would be beneficial for the child. For example, if you can show that the cheating spouse regularly brings illicit partners into the children's lives, the court may find it is in the best interest of the child to limit contact with that spouse.
Elizabeth Rayne earned her J.D. from Penn State University and has been practicing law since 2009, advising clients on issues ranging from employment law to nonprofit management. For two years, she served as a contributing editor for the "Vermont Environmental Monitor."