Evidence that Can Be Used Against You in a Divorce Case

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Every divorce comes with a significant amount of stress, but if the divorce is fault-based, it generally means a more contentious – and, therefore, more stressful – divorce. Even if your divorce is no fault, however, there are certain kinds of evidence that can be used against you and that, as a result, can affect your divorce terms.

If you’re facing a divorce, protect your financial and parental rights from the start by consulting with an experienced Round Rock divorce attorney.

Fault-Based vs. No-Fault Divorce in Texas

Most divorces in the State of Texas – and throughout the country – are no fault, which means they are based on insupportability – or on irreconcilable differences. Those divorces that are based on grounds of fault typically go to court, which means that all the following apply:

  • They are more time-consuming.

  • They are more costly.

  • They tend to be more contentious.

  • The outcome is a matter of public record, which makes the divorce less private.

Texas allows divorces based on each of the following categories of fault:

  • Adultery, which refers to having a sexual relationship with someone other than one’s spouse

  • Cruelty

  • A felony conviction that leaves the spouse imprisoned for at least a year

  • Abandonment, which refers to a spouse who intentionally abandons the marriage and remains away for at least a year

  • Living apart for at least three years

  • Confinement to a mental hospital for at least three years with little hope of recovery

To obtain a divorce based on fault, the spouse who blames the other for the breakdown of the marriage must prove the other’s wrongdoing. If either of you is seeking a fault-based divorce, you’ll need to present evidence that backs up your claim. Fault can play a role in resolving your divorce terms, and this is true even in a no-fault case.


If you or your spouse is unfaithful to the other, it can affect the outcome of your property division and can potentially affect your parenting time schedule. The fact that your spouse claims you are having a sexual affair with someone other than them isn’t enough to sway the court – they’ll need evidence to back them up, which often comes in forms like the following:

  • Texts or other forms of electronic messaging between you and the other person

  • A phone log indicating an inordinate number of calls between you and the other person

  • Photographs of you and the other person in romantic situations, such as intimate dinners out or entering hotels together

  • Testimony by other people whom you shared information about your relationship with

  • Testimony by other people who witnessed you and the other person together under inappropriate circumstances

Even if your divorce is no fault, a romantic affair can affect the division of your marital property. For example, if your spouse can prove that you used marital funds to keep your affair going, it demonstrates that you effectively deprived your marital estate of the amount you spent.

If the court finds that you acted without regard for community property and without the consent or knowledge of your spouse, they can be awarded a more substantial property division as a result. The kinds of expenses that are most likely to convince a judge of an affair include the following:

  • Dinners out with the other person

  • Hotel stays with the other person

  • Vacations or trips with the other person

  • Gifts purchased for the other person

It’s important to note that adultery can affect more than your finances. If your soon-to-be ex can prove that your focus is on your new romantic partner rather than on your children, the court may limit your visitation.

Further, if your new love interest has a record of child abuse, child neglect, domestic violence, substance abuse, or anything else that is a risk factor to your children, it can directly affect your child custody arrangements. And this is true even if your divorce is based on insupportability.

It’s also important to keep in mind that, in Texas, there is no legal separation. If you and your spouse separate while your divorce is pending, which many couples do, you are still married, and dating or starting a new relationship during this time can lead to negative consequences.

A History of Abuse

If you have a history of domestic abuse against your children or spouse, the court can limit your time with your children, can require supervised visits, or can deny you access altogether. If your spouse alleges family violence – without any legal record of it –┬áthe court will consider the matter with respect to the credibility and validity of the claim.

The standard of evidence required by the family court in your divorce case, however, is much lower than it would be in a criminal court, which is beyond a reasonable doubt. If your spouse is alleging abuse on your part, it’s time to consult with a formidable divorce attorney.

Substance Abuse or Addiction

If your spouse can convince the court that you have a substance abuse problem with either drugs or alcohol or that you have an addiction, it can affect your parenting time schedule. While you have every right to have a glass of wine with dinner and to engage in reasonable social drinking, substance abuse is problematic.

While proving addiction is difficult – absent repeat stints in rehab or multiple DWIs – evidence like the testimony of others regarding your alcohol or drug use can prove legally compelling.

Additionally, while recreational marijuana is legal in many neighboring states, it is illegal in Texas. If your divorcing spouse accuses you of smoking or otherwise using marijuana, the court may require you to be tested, and the results could affect your child custody orders.

Too many parents facing child custody cases think that – because it’s just marijuana – it won’t affect their parental rights, but the reality is that it could. Minding your P’s and Q’s while your divorce is pending is always in your best interest.

The bottom line is that Texas courts always prioritize the children’s best interests, and illegal drug use is one factor they take into consideration. While marijuana is treated somewhat differently than other illegal drugs in Texas, the court can take marijuana use very seriously in relation to your child custody case.

Even if a positive test relates to you smoking legally in another state, the positive reading won’t reflect this fact, and the court is unlikely to take it into consideration.

Financial Misconduct

Any fraud on the marital estate can skew your property division in your spouse’s favor. Fraud of this kind refers to any means of artificially decreasing the overall marital assets in an effort to keep more for yourself, and it can take any of the following forms:

  • Hiding or obscuring assets

  • Giving away assets

  • Spending down marital funds

  • Gifting marital property to others

  • Offering false valuations of marital assets

  • Engaging in any practice that deceives your spouse regarding the marital estate

The court can punish you for engaging in financial hijinks of this nature, and evidence of such antics can take many forms. Often, forensic accounting is required to follow the paper trail and pinpoint any discrepancies. Financial misconduct is often proven by demonstrating a pattern of actions that suggest fraud.

Considering Social Media

Social media has its merits, but taking a break from posting is universally advised if you're going through a divorce. Regardless of content, your posts can be interpreted in a variety of ways. You take this potential weapon out of your spouse's hands by making it your policy not to post while your divorce is pending.

If your soon-to-be ex is bound and determined to get one over on you in your divorce, they are going to be pouring over your social media activity, and if you’re posting, they’ll almost certainly find something to use against you – or attempt to use against you.

You also need to remember that the internet is forever – once you send that private message or post something that is heavily protected with privacy settings, it’s out there, and a simple screenshot can render it anything but private.

Your Correspondence with Your Spouse and Others

You’re going through a divorce, and the fact that it’s one of life’s most stressful transitions means that you’re not only under a lot of pressure but are likely also experiencing a tsunami of emotions. Venting, in other words, is to be expected.

If you do your venting by attacking your divorcing spouse verbally, by leaving angry rants on their phone, by writing them scathing emails or texts, or by using any other electronic means of corresponding with them hatefully, it can be used as evidence against you in your divorce case.

While no one expects you to be chummy with the person you’re divorcing, it’s an excellent idea not to share your ugliest and most irrational thoughts in a manner that can come back to haunt you. Keep your interactions with your soon-to-be ex as civil as you can, and turn to your trusted family members and friends, a support group, or a counselor to express your inner turmoil.

A final note on this topic is that the messages, texts, emails, and voicemails you send to your loved ones can also be used against you. Divorce attorneys have the authority to issue subpoenas to third parties for releasing specific documentation and for testifying in court.

Protecting Yourself in the Face of False Accusations

Divorce can become very heated, and if yours is highly contentious, you could find yourself facing false allegations. You may be surprised to learn how often spouses are blindsided by their partners’ acrimony in the face of divorce – and many are startled by the depths to which they’ll sink in their efforts to win.

If you find yourself facing allegations of wrongdoing, you shouldn’t wait to take action. While your savvy divorce attorney will guide your efforts, there are certain steps you should take:

  • To begin, find out what your spouse is claiming and determine if it has any bearing on reality. For example, you may have smoked marijuana a time or two while you were vacationing in Colorado, but this doesn’t make you an addict.

  • Determine what kind of evidence, if any, they have against you.

  • Collect any and all evidence you can to disprove their claim, which can include correspondence, electronic messages, calls, social media posts, and the testimony of those who know you well.

  • Refrain from retaliating against your spouse with false accusations of your own.

  • Refrain from communicating with your spouse other than when absolutely necessary, and if every face-to-face interaction with them turns ugly, stick to electronic means. For example, there are co-parenting apps out there that streamline scheduling.

  • Follow any temporary orders put in place regarding your spouse’s false allegations while your trusted divorce attorney skillfully takes on disproving them.

Make the Call to an Experienced Round Rock Divorce Attorney Today

Brett Pritchard at The Law Office of Brett H. Pritchard is a seasoned divorce lawyer who employs the full force of his expansive experience in every case he takes on. He’s got the legal skill, insight, and resources to help you. For more information about how we can help, please don’t hesitate to contact or call us at 254-781-4222 to schedule your free consultation today.

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