The Effect of Infidelity on a Divorce
More than 90 percent of Americans believe infidelity is immoral. Yet, infidelity is one of the most common grounds for divorce.
The legal implications of infidelity are not always straightforward and depend on the situation.
In Texas, while adultery is not a crime, it can be used as evidence in establishing grounds for divorce. Infidelity can also play a role when it comes to matters such as child custody, alimony, and property division.
Before we get into the details of how infidelity impacts a divorce, let’s look at how common adultery is.
How common is infidelity?
According to national surveys conducted by the AAMFT (American Association for Marriage and Family Therapy), 25 percent of married men and 15 percent of married women have had extramarital affairs. This is the percentage when infidelity involves sexual intercourse.
If emotional relationships are included, the numbers are 20 percent higher.
The American Psychological Association estimates that infidelity is prevalent in 20 to 40 percent of American marriages.
And, despite therapy, 53 percent of these couples divorced within five years.
The most recent study on infidelity in 2020 looked at historic data to confirm that the prevalence ranges from 12 to 25 percent.
Undoubtedly, the effect of infidelity on a divorce can be devastating to the couple. It can cause immense pain and suffering for both partners involved in the marriage. The effects of infidelity on divorce are often more severe when children are involved in the marriage as well.
That said, you may be wondering if adultery is a ground for divorce in Texas. The next section answers this question.
Fault and no-fault-based divorce in Texas
In Texas, there are both ‘at fault’ and ‘no fault’ grounds for divorce.
A no-fault divorce is a divorce that does not require assigning blame for the marriage’s failure. In a no-fault divorce, one spouse can file for divorce without having to prove that the other spouse was at fault.
The grounds for a no-fault divorce in Texas are as follows:
- The marriage has become insupportable because of discord or conflict of personalities. Due to incompatibility or conflict, there is no reasonable expectation of reconciliation;
- The spouses have lived separate and apart for at least three years with the intent to end their marriage; or
- One spouse has been confined to a hospital for mental illness for three years or more.
Here are the grounds for a fault divorce in Texas:
- Desertion: One spouse has abandoned the other spouse for at least one year.
- Living apart: One spouse has voluntarily lived separately from the other for at least three years without interruption.
- Cruelty: One spouse has caused serious bodily or mental injury to the other or their child
- Adultery: One spouse has committed adultery and the other finds it intolerable to live with them.
Clearly, adultery fits into the category of fault-based divorce. At this point, you may be wondering if it is required to prove that your spouse committed adultery to get a divorce.
According to the Texas Family Code, “adultery” is committed when a married person has voluntary sexual intercourse with someone other than their spouse.
For courts to recognize the same, you will need to prove your spouse committed adultery. You can prove that it occurred by providing:
- Direct evidence
- Circumstantial evidence
It’s important to note that in Texas, only sexual intercourse is considered infidelity. Any sexual or emotional acts that do not involve sexual intercourse will not meet the criteria of adultery in Texas, even if you think it is.
This means that if you have evidence of the following, it may not be enough to convince the court that your spouse committed adultery:
- Groping, kissing, or petting someone
- Sending sexual texts or photos to someone
- Having oral sex or other acts of intimacy that do not involve sexual intercourse
To prove adultery, the evidence must clearly show that voluntary sexual intercourse occurred between your spouse and someone else during the course of your marriage.
For instance, emails describing sexual intercourse, documents, written communication, and photos.
Here are some ways to prove infidelity:
- Emails, videos, and text messages exchanged between your spouse and their paramour
- Social media posts that showcase vacations taken together and so on
- Credit card or bank statements that show unexplained expenses related to gifts, dinners, vacations, or hotels
- Phone conversations that you overheard between your spouse and their paramour
- Eyewitness accounts
While you may want to record phone calls, hire an investigator and have them follow your spouse around, or install surveillance cameras in their house, these methods may not be legal.
Consult with a divorce lawyer before doing anything illegal if you suspect that your spouse is committing adultery.
Now, to answer the important question: how does infidelity affect your divorce? Let’s look at the ways infidelity can impact divorce in terms of property division, child custody, and alimony.
Does infidelity impact property division in Texas?
In Texas, any property acquired during the marriage is considered community property and is typically divided equally between the parties. In addition to property division, any debt the married couple accumulates is also generally divided between the two in a fair manner.
In a contested divorce, the court considers a variety of factors including, but not limited to, each spouse’s contribution to acquiring and maintaining the property and their earning capacity.
Infidelity can have a significant impact on the divorce process and can be considered when dividing property. Here, the judge will take into consideration the duration of the marriage and the severity of the infidelity. They may award a higher share of the marital assets to the one seeking the divorce (the innocent spouse).
The spouse who is found to have committed adultery may have to bear a higher share of the debt.
However, if you are seeking a large percentage of the property because of your spouse’s infidelity, you will need to prove that the adultery resulted in breaking your marriage.
Alternatively, you will have to show that your spouse wasted marital/community property on the extra-marital relationship.
Note that you cannot claim a disproportionate amount merely to punish the errant spouse.
Ideally, courts will look into the benefits the innocent party would have received if the marriage had not broken down due to the other party’s infidelity.
Similarly, the court may also award a greater share of marital property to you as an innocent spouse if your cheating spouse has wasted marital assets on the extra-marital relationship.
Showing evidence of any vacations, gifts, cash, transportation, or food can help you prove that your spouse wasted community property on the extra-marital relationship.
The judge may also order the spouse found to have committed adultery to reimburse the money they “wasted” on gifts, dinners, vacations, and so on.
Does infidelity impact child custody in Texas?
In Texas, child custody is determined based on the best interests of the child. In deciding what is in the best interest of a child, the court will consider all relevant factors including:
- The historical relationship between each parent and the child
- The wishes of a child if he or she is old enough to express an intelligent preference
- The mental and physical health of each parent
- The home environment provided by each parent
- Each parent’s willingness to facilitate and encourage a close and continuing relationship between the other parent and the child
Generally, infidelity has no bearing on the parenting capabilities of the concerned spouse. However, in many states including Texas, the court may use evidence of infidelity to determine which parent is capable of caring for their children.
This is particularly the case when the court believes the spouse committing adultery neglected their parenting duties or that the adultery caused harm to the children in any way.
Some other factors that courts may consider when deciding on child custody issues include:
- whether the extramarital relationship was carried on in front of the child/children
- whether minors were exposed to inappropriate behaviors when the extramarital affair was carried out
- whether the cheating spouse has allowed contact with their paramour who is cruel or abusive to the children
- whether the cheating spouse is abusive or violent towards the children
In these cases, infidelity may also play a role in deciding how much time the cheating spouse will spend with their children and what kind of parenting schedule they should have.
How does infidelity impact alimony?
In Texas, courts will look at the following factors to determine the amount of alimony:
- The duration of the marriage
- The age and physical and mental condition of the parties
- The sources of income for both spouses
- The contribution of each spouse to the marriage, including services rendered in homemaking, child care, education, and career building
- Whether the infidelity was forgiven or condoned by the innocent spouse
- Whether there are any children from this marriage who are living with one or both parents
Texas courts typically award alimony for spouses who are not able to support themselves after the divorce. The primary objective here is to ensure both spouses have equal financial status post divorce as far as possible.
The court may consider infidelity as a factor when determining whether or not to award alimony and the amount of alimony.
In order to determine whether the marriage has been harmed by infidelity, the court may consider any of the following factors:
- The nature and extent of the marital fault
- The circumstances that contributed to the infidelity
- The length of time between the spouse’s discovery of the infidelity and filing for legal separation
- Whether there is a pattern of infidelities
- Whether there are children from this marriage who are minors or dependents and what is their age range
- The spouses’ economic circumstances and needs at this time
In some cases, the cheating spouse may not be awarded alimony even if they have a financial need. On the other hand, the innocent spouse may be awarded a higher amount of alimony, particularly if the infidelity resulted in financial or emotional harm to the innocent party.
However, judges will not always rule in favor of the spouse who was cheated on.
Does it count as infidelity if we are separated in Texas?
In the state of Texas, it is still considered infidelity if you are separated and living in separate residences even if you are not legally divorced.
Adultery includes any relationships entered into before a divorce and after a separation. It is important to note that “legal separation” is not recognized in Texas.
In other words, in Texas, until you are divorced, you are married.
Other ways infidelity can impact your divorce
Most couples prefer an uncontested divorce over a contested one.
In an uncontested divorce, both parties agree to the terms of the divorce and they do not fight over anything. This is also called a “no-fault” divorce.
It is a simple, cost-effective way to get divorced and it can be completed without going to court.
However, if you are seeking an uncontested divorce and your spouse finds out that you are dating someone else, they could decide to contest the terms of the divorce. This will turn it into a contested divorce.
Similarly, if you find out that your spouse is in a relationship with someone else even before the divorce is finalized, you may want to change the terms of the divorce too. For instance, you may want to claim a higher amount of alimony or a better share of marital assets.
The advantages of working with a seasoned divorce lawyer in Texas
While infidelity is a common reason for divorce, it can be difficult to prove it in court. A divorce lawyer is an expert in this field and can provide legal advice on what steps to take next.
It’s important that you work with a reputable divorce lawyer who has experience in handling divorces filed on the basis of infidelity. They have the tools needed for success in your case as well.
Having won many cases where infidelity has been the ground for divorce, our attorneys at the Vendt Law Firm know how to navigate the tricky waters of a complicated divorce.
From helping you understand how to prove infidelity to safeguarding your rights as a parent, we are committed to offering comprehensive guidance at every step.
Get in touch with us to know how we can help you fight for your rights.