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The “A” Word

January 30, 2017 in Uncategorized | MARTIN WREN, P.C. | LEAVE A COMMENT

Adultery is an emotionally devastating experience. When one partner cheats, it leads to a contentious divorce due to the betrayal by the cheating partner. Quite often, the presence of adultery alone is not what sparks the hurt feelings. The damage is intensified when the spouse finds out that money was spent on expensive gifts or vacations with the other person. In our experience as divorce lawyers Arlington TX trusts, we often see that the betrayal leads the spouse to claim adultery for primarily two purposes: vindication and a larger piece of the pie.

Like many states, Texas is a “no-fault”state, which means that you do not need to provide a reason for the divorce. Under Section 6.003 of the Texas Family Code, adultery is a fault ground for divorce. A divorce based on a fault ground means that one of the spouses was at fault for the breakup of the marriage. Under the adultery fault ground found in the Texas Family Code, one spouse is required to show that the other engaged in voluntary sexual intercourse with one not their husband or wife.  Without going to deep into detail, Texas courts require clear and present proof – meaning the courts take a literal approach concerning the term intercourse.

The problem with using adultery as grounds for divorce in Texas is that you must prove the adultery happened. Mere suggestion or innuendo are insufficient to prove adultery in Texas courts. Even if you prove adultery occurred, you may be surprised to know that the individual judges take very different approaches when determining what impact the conduct will have when dividing the marital estate. Some take a “so-what” approach concerning the adultery as it is viewed as more of a symptom versus the cause. Other judges find the offense so disturbing that they deliver harsh rulings against the offending party. Knowing the mindset of the Judge in your case is crucial when it comes to succeeding in an adultery case.

Adultery can also be a factor with regards to child custody. Texas courts examine adultery very closely if it was committed in front of the children during the marriage. Introducing the children to the other person will seriously impair the cheaters’ position when they appear in front of the judge. The degree to which the children are exposed to the illicit affair will factor into the court’s decision. The timing of the affair will also be factored into the decision as well as where the affair occurred.

If you suspect that your spouse is cheating on you, and are considering a divorce, be aware that proving adultery is very difficult. Furthermore, the presence of adultery may not cause the court to deviate from the 50/50 split of community property especially if the children of the marriage have no idea adultery occurred. Remember, you do not have to go through this process alone.


BAThanks to our friends and contributors from Brandy Austin Law Firm PLLC for their insight into family law.

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