While most divorces in the State of Texas are no-fault divorces, some are based on one spouse’s wrongdoing, and one form of wrongdoing the courts take into consideration is adultery. Many divorcing couples are confused about when a cheating spouse’s actions amount to adultery and constitute the foundation for a fault-based divorce. Whatever your divorce concerns, an experienced Lampasas divorce attorney can help.
Adultery in the State of Texas
In Texas, adultery is defined as a married person who voluntarily has sexual intercourse with someone other than his or her spouse. To establish that one’s spouse is, indeed, engaged in adultery, either direct evidence or circumstantial evidence that reaches what is called a clear and convincing level is required. Gossip, suggestion, and innuendo do not rise to the necessary level.
My Spouse Is a Cheat
If you have caught your spouse engaged in any of the following less-than-savory activities, it may make him or her a cheat, but it does not meet the legal requirement for adultery:
Sending sexually charged photos or texts to someone other than you
Kissing, groping, and/or petting someone other than you
Engaging in oral sex with someone other than you
In the eyes of Texas law, the bar is fairly high when it comes to the matter of adultery.
We Were Separated
In Texas, you are married until you are divorced (or your marriage is annulled). The State of Texas does not recognize separations. Even if you and your divorcing spouse agree that you are separated, this does not negate the fact that a new relationship (engaged in during your separation) may be classified as adultery by the court.
The Division of Marital Property
If your divorce is based on fault and that fault is adultery, it can affect how your marital property is divided between the two of you. In Texas, marital assets are intended to be divided equitably – or fairly under the circumstances in play – in the event of divorce. As such, the court can consider the circumstance of one spouse’s adultery, which can lead to a disproportionate division of marital property.\
Child Custody Arrangements and Alimony
While the fact of adultery can play a fairly significant role in your divorce, it cannot affect whether alimony will or will not be awarded and will not (in and of itself) play a role in your child custody arrangements. An important note, however, is that – if alimony is a factor – adultery can affect the amount and duration of the payments. Further, if the eligible spouse is the one who committed adultery, it can negate his or her eligibility.