If Infidelity Plays a Role in Your Divorce

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Brett Pritchard Law

Updated on September 9, 2024

No two divorce cases are exactly alike, and the same is true of divorce cases that involve infidelity. It’s important to recognize, however, that your spouse’s infidelity could play a role in the outcome of your divorce, and knowing the impact that infidelity can have can afford you a better understanding of your own case.

Regardless of the circumstances of your divorce, however, having an experienced Round Rock divorce attorney on your side from the start is always to your advantage.

No-Fault vs. Fault-Based Divorce in Texas

While Texas is considered a no-fault state when it comes to divorce, the state – nonetheless – offers a fault-based option, and one of the most common forms of fault employed is adultery. Fault-based divorce cases are generally considered to be more challenging for all of the following reasons:

  • They generally take longer to resolve.

  • They are generally more expensive to resolve.

  • They go to court because the spouse seeking the fault-based divorce is called upon to prove the other’s fault, and the spouse who has been accused is unlikely to take the matter lightly.

  • They are generally more contentious overall and tend to be harder on the children involved.

These are just a few of the reasons that the vast majority of divorces in Texas are no fault. There are, however, instances when it’s worth all the extra effort and expense to pursue a fault-based divorce.

Not the least of this can be the emotional relief of demonstrating that one’s spouse directly caused the marriage to fail. Your seasoned divorce attorney will ensure that you understand the implications of a fault-based divorce – if you’re considering this option – and will help you make the right choices for you along the way.

Finally, it’s important to point out that the fact of your spouse’s affair can potentially affect certain terms of your divorce, even if in a no-fault case. For example, if your spouse spent an inordinate amount of money on the extramarital relationship, it could affect your property division.

And if your spouse is moving on with a new relationship post-divorce, it could also affect the amount of parenting time they’re awarded or the conditions that apply – especially if their new partner is considered in some way inappropriate when it comes to spending time with your children.

Will Infidelity Affect Your Divorce?

The answer to the question of whether or not your spouse’s infidelity will have an effect on your divorce is that it depends. And it depends on factors like the following:

  • If you have proof of their infidelity, which can be a tall order if they choose to deny it

  • Whether or not you share young children with your spouse

  • If your spouse used marital assets to bankroll their affair and if they spent lavishly on the extramarital relationship

  • How honest or dishonest your spouse has been about the affair

  • Whether you are seeking a fault-based or no-fault divorce

In other words, the court will take many factors related to your spouse’s infidelity into consideration when determining the divorce terms that could potentially be affected. And your dedicated divorce attorney will help you choose the path forward for you in your unique situation.

Signs that Your Spouse May Be Cheating

If you’re wondering whether or not your spouse is cheating on you, you probably have a good reason for even considering the notion. While your gut instinct isn’t necessarily correct, it’s trying to tell you something. Some of the most common indicators of infidelity in a marriage include the following:

  • If your ability to communicate with your spouse has changed, such as if they no longer open up to you, are more reserved or irritable with you than they used to be, avoid your questions, or just seem different in general when it comes to communication style

  • If your spouse seems to be avoiding you or your shared home in general

  • If your spouse’s attitude toward your marriage has changed, such as if they have lost interest in sex or in other activities you used to enjoy together, or if they seem indifferent about your relationship overall

  • If your spouse shifts blame and accuses you of cheating on them

  • If your spouse is more focused on their appearance than they were in the past

  • If your spouse spends a lot more time on their phone or on another electronic device than they used to

  • If you catch your spouse in small lies that don’t make sense to you

If your spouse is cheating on you, it’s a painful experience, but if the writing is on the wall and they’re lying about it, it translates to gaslighting, which adds insult to injury.

Proving Your Spouse’s Affair

The thing about cheating spouses is that they often go to great lengths to hide the fact that they’re cheating. This means that, while you may be absolutely convinced that your spouse is cheating – and while you may be absolutely right on this point – it’s not the same as proving the matter in court.

Clear and Convincing Evidence

In order to prove that your spouse is engaged in an adulterous affair in a Texas court, the burden of proof is on you, and the standard of clear and convincing evidence applies.

This means that you must offer enough relevant evidence to convince the court there is a high probability that you are right about the matter. In other words, your testimony and even photos of your spouse with the other person may not be enough.

Every divorce in which infidelity is an issue is determined on a case-by-case basis.

Common examples of the kind of evidence that often comes into play include the following:

  • Text messages and voicemails between your spouse and their new romantic partner

  • Social media posts by your spouse, the other person, mutual friends, or third parties – social media can provide a treasure trove of information that those doing the posting may not even realize

  • Photos and videos

  • Credit card bills and bank statements, which can indicate suspicious financial activity

  • The testimony of friends and relatives

  • Travel records

  • GPS logs from your spouse’s vehicle or phone

While you’re unlikely to catch your spouse in the act of having an affair, you may be able to create a compelling case against them that supports your claim of adultery. If you can provide the court with clear and convincing evidence of your spouse’s infidelity, it is very likely to grant you a fault-based divorce.

For example, if your spouse and the other person in question text and call one another frequently, hang on the phone together for long stretches at odd times, flirt with one another on social media, are out of town on the same dates, and engage in other activities that are indicative of a romantic connection, you may be well on your way to proving adultery.

Social Media

The evidence used to prove infidelity tends to come in a variety of forms that, when considered in conjunction with one another, tells a compelling story. More and more, social media is coming into play in divorces involving adultery.

Even if your spouse stays off social media altogether or is very careful not to post photos of themself with a paramour – there is no telling where implicating photos and posts can land – such as on a friend or acquaintance’s account.

Further, it only takes one person who likes to share to seriously limit the strength of even the tightest privacy parameters, and a simple screenshot can make a post last forever.

In other words, if you can locate pictures of your spouse in compromising situations with the other person online, it can help flesh out your claim of infidelity considerably. Prime examples include photos of them holding hands, kissing, or simply being overly chummy – and the more photos, the more impact the evidence is likely to have.

Never underestimate the power of digging through social media when it comes to proving your spouse’s unfaithfulness.

The Other Person

There is also the matter of the other person. If you know the person your spouse is cheating on you with, it can make the matter that much more painful, but it can also afford you leverage in your case.

If you know the person’s full name and an address where they can be served, you can subpoena them to testify in your case, which can reap very strong evidence that is very difficult to refute.

It’s important to point out here that, if you do subpoena your spouse’s new romantic partner, there is always the chance that the person will downplay the nature of their relationship. A common refrain is that – sure, we spend a lot of time together, but we’re just good friends.

Most people, however, are hesitant to perjure themselves on the stand, which means lying while under oath. Further, it’s the totality of the evidence that the court is interested in, which means the other person’s testimony can still prove beneficial.

The Amount of Money Your Spouse Spent on Their Affair

Texas courts take the amount of marital assets that are funneled into extramarital affairs very seriously. Marital assets refer to those assets that you and your spouse acquired during your marriage.

If either of you – or both of you together – earned the money or came to own the property while you were married, it’s almost certainly a marital asset that belongs to both of you.

Having an affair with another person can be very costly. If your spouse is using marital funds to conduct their own affair, they are not only cheating on you emotionally but are also chipping away at your marital estate, which can diminish your fair share when the time comes to divvy things up in divorce.

The issue becomes that much more pronounced if your spouse is engaging in a lavish lifestyle with their new partner, which isn’t especially uncommon.

When Young Children Are Involved

Many people fail to recognize how seriously Texas courts take the vulnerability of children into account when it comes to parenting time determinations. When young children, such as those who are under the age of 13, are involved, the court is likely to take your spouse’s affair more seriously.

For example, if your spouse spent time with their new love interest when your children were present, the court may take a dim view. This is especially true if you didn’t know about the situation and didn’t give your permission.

The fact is that divorce is very hard on children, and young children absolutely don’t understand the dynamics of adult romantic relationships, which can add up to a lot of confusion on their part and can amplify the pain and damage they experience.

Texas courts are invested in minimizing this harm, which is why your spouse’s affair can affect their parenting time schedule even in a no-fault divorce.

Finally, there is the matter of the other person’s suitability when it comes to spending time with your children, and factors like the following can play a serious role:

  • Whether the individual has a criminal record

  • Whether the individual has lost custody of their own children or is required to have limited or supervised visitation with them

  • Whether the individual has a violent background or a violent temper

  • Whether the individual has been accused, charged, or convicted of domestic violence, child abuse, or child neglect

Yes, your spouse has the right to move on post-divorce, but their actions prior to divorce matter, and if they demonstrate a serious lack of judgment in relation to their children’s overall well-being, the court will take notice.

Lying to the Court

As mentioned, proving a spouse’s adultery can be very challenging, but it can also be done – even if the cheating spouse refuses to cop to their actions. Many people would prefer not to admit to bad behavior and will go to great lengths to save face.

Committing adultery while married is not only frowned upon by society in general but can also tarnish one’s professional reputation and can even erode a parent’s relationship with their children. Dishonesty in one area of life has a way of creeping into other areas, and many people would prefer to lie rather than face the music.

Lying to the court in the course of one’s divorce, however, is a different matter. If your spouse doesn’t think you’ll be able to prove that they were unfaithful to you, they may be emboldened to lie to the court about your accusation.

Texas courts, however, are not so easily fooled, and if you have ample evidence to demonstrate that they were, indeed, cheating on you, the fact that they lied to the court can support significantly better financial terms for you, including in relation to property division and alimony – as applicable.

Alimony

In Texas, alimony is called spousal maintenance, and it is only ordered when each of the following applies:

  • The recipient is left without the means to cover their own reasonable needs in relation to the standard of living achieved during the marriage.

  • The payor has the financial ability to help.

Factors like the following come into play when alimony determinations are made:

  • The length of the marriage

  • The size of each spouse’s separate estate

  • The size of the marital estate

  • Each spouse’s contributions to the marriage, including in terms of homemaking and childcare

  • Each spouse’s income and earning potential

Finally, the matter of fault – specifically adultery – can also tip the balance when it comes to whether or not alimony will be awarded and, if so, its amount and duration.

Texas Is a Community Property State

Texas is a community property state, which means that everything you came to own as a married couple – whether separately or together – belongs to both of you, and upon divorce, these assets must be divided in a just and right manner.

While this can mean an equal split, it doesn’t always. Instead, Texas courts take the circumstances of the marriage into consideration, and in a divorce that is based on adultery, the matter of fault can directly affect the division of marital property.

Factors that Affect the Division of Marital Property

When Texas courts divide property in a divorce, they take factors like the following into careful consideration:

  • The size of the marital estate

  • The size of each spouse’s separate estate, which refers to those assets each owned prior to marriage and kept separate during the marriage

  • The length of the marriage

  • Each spouse’s income and earning potential

  • The contributions each spouse made to the marital estate, including in terms of caring for the home and children

  • Whether fault played a primary role in the breakdown of the marriage

  • The tax implications of the proposed division of property

While adultery can be a very important factor in the division of marital property in a fault-based divorce, it’s not the only factor.

A Note about Separations

It’s important to note that the State of Texas doesn’t recognize legal separations. You are married in the state until you are divorced, and beginning a sexual relationship with someone other than your spouse while separated still amounts to adultery.

In other words, just because your spouse moved out of your home before taking their affair public doesn’t mean they can’t still be on the hook for a divorce that is based on adultery.

Turn to an Experienced Round Rock Divorce Attorney for the Help You Need

Brett Pritchard at The Law Office of Brett H. Pritchard is a formidable Round Rock divorce attorney with a fine-tuned understanding of the legal intricacies related to divorce involving infidelity and is standing by to help you.

Your divorce terms are important to your future, so please don’t wait to contact or call us at 254-781-4222 to schedule your free consultation today.

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