There is no doubt that adultery can be a major factor at the end of a marriage; however, does adultery have an equal impact on the subsequent divorce? As Fort Worth divorce attorney Jon Boyd explains, adultery could play a role in your divorce, but it will not likely be as prominent of a role as you may think.
Whether you and your spouse said traditional wedding vows or wrote your own, you likely promised to be faithful to each other during those vows. Like most couples, you probably both intended to keep that promise. Studies tell us, however, that about one in four marriages experiences at least one incidence of infidelity. While infidelity does not always lead to divorce, it can certainly be the catalyst for the end of a marriage.
Not all that long ago, if you wanted to divorce your spouse you were required to allege – and ultimately prove – wrongdoing on the part of your spouse. In recent decades, many states have done away with fault grounds altogether. Other states, including Texas, allow a petitioner to use fault or no-fault grounds when filing for divorce. The fallback no-fault option in Texas is known as “insupportability” which is what people commonly refer to as “irreconcilable differences.” If you file using insupportability as your grounds for divorce, the fault is not an issue. You simply have to claim that you and your spouse can no longer make your marriage work. You may also claim “living apart” if you have lived apart for three years or more or “confinement to a mental hospital” if it applies to your situation in a no-fault Texas divorce. Texas also continues to allow petitioners to choose fault grounds when filing for divorce. The fault options in Texas include cruelty, felony criminal conviction, abandonment, and adultery. If you choose to include adultery as your grounds for divorce, keep in mind that you will need to present sufficient evidence of the adulterous conduct. It is worth noting that in Texas, acts of adultery that occur after you file for divorce and are no longer cohabitating can still be used to prove adultery in a fault divorce.
The fact that you, or your spouse, committed adultery during your marriage matters considerably less today than it would have 50 years ago. That does not mean it is completely irrelevant. Adultery will rarely impact issues related to child custody (referred to as conservatorship in Texas). The primary exception to this general rule is if the adultery was flaunted in front of the minor children. In that case, it could impact the court’s determination of what is in the “best interest of the children.” Spousal support will also not likely be impacted by adultery unless you entered into a pre-nuptial agreement that includes an infidelity clause that awards the aggrieved spouse a financial award.
One area of the divorce process where adultery is likely to play a role is in the division of assets. Texas is a community property state that requires marital assets to be divided in a “just and right” manner during a divorce. That does not dictate an equal division of assets. If an aggrieved party can make a convincing argument that his/her spouse committed adultery, the court can use that wrongful behavior as a factor to consider when dividing the marital assets. This is even more likely if you squandered marital assets because of your affair. For example, if you purchased lavish gifts for your extra-marital partner or you spent money on hotels to carry out your affair. Ultimately, if you committed adultery during your marriage it could lead to a loss of marital assets when your marriage comes to an end.
If you are planning to end your marriage and you believe adultery will be a factor in the divorce, contact an experienced Fort Worth divorce attorney at Boyd Family Law to schedule your appointment today.