It’s no surprise that adultery is one of the most frequent issues that lead to divorce. In many, many consultations I have done with people before their divorce was filed, they came in believing the cheating spouse was doomed in court. Generally, the person will smugly say “Oh! And he (or she) cheated on me” as if now we have everything we need to crush the spouse in court. But does the innocent spouse get the upper hand in a divorce because the other spouse cheated?
Here are some important considerations, in no particular order:
- The judges see marriages broken up over adultery all the time. So going into court saying “She cheated on me” just doesn’t draw much reaction from the judges; they expect it. If your case was built upon blowing the judge’s hair back with the sordid details of your spouse cheating, you will likely be disappointed with the judge’s reaction.
- The Texas Family Code doesn’t allow for punishing a cheating spouse. It is not a criminal code. It is designed to provide for two things: the best interest of the child (BIC) and a just and right division of the community estate. A cheating spouse can still be a great parent, so the cheating doesn’t affect custody considerations for the children. Likewise, the fact that a spouse cheated doesn’t necessarily change what is a fair division of the marital estate; he or she won’t get less of the stuff just because he or she cheated (but see No. 3, below)
- You only get any real benefit from claiming adultery by your spouse if he or she spent significant community money on the paramour(s). For example, if your spouse had a girlfriend, and he paid for her apartment or her car for months or years, you would have a claim against that money he spent on his paramour. Under these facts, you could ask the court to award you a larger share of the marital estate, NOT to punish your spouse, but to reimburse you for the money wasted on the girlfriend that you would have had in the marriage.
- Divorce proceedings are public record, and the proceedings are held in open court (aside from collaborative divorces, which are confidential. For information about collaborative divorce confidentiality see here). This means that the records of the divorce will show that adultery is claimed against the other parent. No one on earth cares about your divorce enough to look into the records except your children, who might look into the divorce some day when they try to piece together what happened between their parents. So if you don’t care to have your children know your spouse cheated on you, that fact shouldn’t appear anywhere in the pleadings.
So what if your spouse is cheating? What do you do? You really have two choices. You can either stay with your spouse knowing he or she is a cheater, or you can get a divorce. While in many cases there really isn’t much value in claiming fault for the break-up of the marriage, there may still a value in getting out of a marriage in which you play second fiddle. Just because a claim of adultery is not a silver bullet, doesn’t mean you must stay in a marriage with a cheating spouse.
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Youngblood Law, PLLC is a Fort Worth, Texas family law firm that uses a holistic approach to help people define their new normal through the divorce process and beyond. This essay is intended for educational use only, and is not a replacement for competent legal counsel. If you are facing a family law matter, we recommend obtaining competent legal counsel like Youngblood Law, PLLC. For more information, contact us at 817-601-5345, find us on the web at www.youngblood-law.com, or on your mobile device, open your browser and type in lawfw.biz and press Go.
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