How does adultery affect Divorces in Texas? Not surprisingly, adultery represents one of the most frequent issues that lead to divorce. Many people think they possess a surefire victory in divorce court if their spouse committed adultery. But does the innocent spouse get the upper hand in a divorce because the other spouse cheated?
Legal Considerations About Cheating
What do the judges think?
Judges see marriages broken up over adultery all the time. Going into court saying “She cheated on me” doesn’t draw much reaction from the judges. You will likely be disappointed with the judge’s reaction from testimony about your cheating spouse. Clearly, there would not be a divorce if there were not problems with the marriage. Cheating is just one element of many unhappy marriages. Plus, both spouses bear some responsibility for letting the romance die in the relationship. If a spouse cheats, isn’t it possible the other spouse contributed to the over all unhappiness of the marriage?
What does the Family Code say about adultery?
The Texas Family Code doesn’t punish a cheating spouse. It is not a criminal code. It is designed to provide for two things. The first is the best interest of the child. The second is a just and right division of the community estate.
Being a good spouse is one issue. Being a good parent is a totally different issue. A cheating spouse can still be a great parent. So, cheating doesn’t affect custody considerations for the children. Therefore, the courts don’t reduce access and time with the kids due to adultery alone.
Likewise, a fair division of the marital estate doesn’t hinge on whether a spouse committed adultery. Again, the Family Code doesn’t pick winners and losers based on cheating. Simply put, the cheater likely won’t get less of the stuff just because he or she cheated (but see below).
When does adultery matter?
A cheater who wastes community property of the marriage may be ordered to reimburse the other spouse. For example, the court can reimburse the innocent spouse if the cheating spouse wasted significant community money on a paramour. Examples of significant wasting include paying a paramour’s rent or car payment. Even verified payments to prostitutes and exotic dancers can trigger reimbursement. In these situations, a competent lawyers will ask the court to award a larger share of the marital estate to the innocent spouse. However, awarding extra assets to the innocent spouse is NOT to punish the adulterer. The purpose is to reimburse the innocent spouse for wasted community assets.
Divorce proceedings are public record, and the proceedings are held in open court. (Note: collaborative divorces are confidential). Consequently, the records of the divorce will show that adultery is claimed against at least one spouse.
Children Now, and In the Future
No one on earth cares about your divorce enough to look into the records except your children.Ideally the children wouldn’t know about the adultery during the marriage or divorce. However, your children might look into the divorce to piece together what happened between their parents someday. It could damage them emotionally to discover that one of their parents cheated on the other. So if you don’t care to have your children discover your spouse cheated on you, don’t plead for it.
Also consider the impact claiming adultery will have on your in-laws and your children. Your children benefit from a good relationship between the parents and grandparents on both sides. Making the divorce as easy as possible helps protect relationships. Claiming adultery is a good way to drive up conflict.
Conflict and Cost
We find that claiming adultery in a divorce tends to drive up the conflict level. Often the cheater gets offended that the family’s private business appears in court documents. Certainly, the embarrassment and shame that can result from being identified as a adulterer can’t be good.
The legal response from the cheater is often predictable. The mutual mudslinging and blaming starts immediately. So does the increase in the cost of the divorce. High conflict divorces drag on longer, require more hearings, and are more toxic. We only recommend pleading adultery if we believe a reimbursement claim exists due to significant wasting of community assets.
So what if your spouse is cheating? What do you do? You really have two choices. First, you can choose to stay with your spouse knowing he or she is a cheater. Second, you can choose to get a divorce. Some marriages can recover and rebuild from adultery if the spouses rededicate themselves to the marriage. Forgiveness and grace go a long way in saving marriages where a spouse has cheated. We have begun divorces for clients who later reconciled with their spouse after adultery. We happily dismiss divorces for our clients who find a way to save their marriage.
The other choice is divorce. In many cases there really isn’t much legal value in blaming the cheating spouse for the break-up of the marriage. While getting a divorce isn’t easy, there’s 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. If the spouses can’t repair the marriage, then a divorce is the only other option. Just keep in mind that the mere presence of adultery doesn’t make the divorce an automatic win.
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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 youngblood-law.com.
Paul Youngblood #beforeyournext #lawfw #youngbloodlaw #somedayistoday #collaborativedivorce #beingdivorceddoesntsuck #newyearnewyou