The Houston Family Law Blog

Three Effects of Adultery on a Texas Divorce

Though Texas is often labeled as a “no-fault” state, there are provisions in the law for filing a fault-based divorce as well. Among the more popular grounds is a fault-based divorce on adultery grounds. Although it can be much more difficult to prove, and often leads to spousal snooping, there are many benefits to divorce on the grounds of adultery.

Texas is a community property state, which means that assets that are not separate property, such as inheritance or gifts, are the property of both parties. That includes the house, cars, and each person’s salary and accrued retirement and work benefits. The typical split is at or near 50/50, though there are a few considerations which can alter that arrangement, such as child custody.

Adultery is grounds for altering the even split of assets, though appeals courts will be on the lookout for abuse of discretion in drastic deviations from the standard split.

Child custody can also sometimes be affected by adultery. In one case, a wife left her husband for a married man, and the court ruled that the husband should have custody and the right to sole say in where the child would reside, even if it was out of state. The woman was also not allowed to bring her child anywhere near her boyfriend.

Granted, that case had some pretty extreme circumstances, with the girlfriend shooting her boyfriend's wife, and the boyfriend having a long drug and criminal history, but the remedy in that case was also extreme. Mere adultery without domestic violence and drugs might still be able to affect child custody issues to a lesser extent.

A third way in which adultery might play a large part in the divorce is in awarding of attorney's fees. Often times, in truly contentious divorces, sometimes caused by adultery, legal fees can skyrocket. Parties let their emotions override their checkbooks and tens of thousands of dollars worth of fees build up over numerous court motions and hearings. If one party is found to be at fault for the divorce, the court has the power to award the other party attorney's fees, on top of any adjustments to community property settlements.

Whether adultery affects your divorce settlement and child custody can in part depend on the judge. As the Texas Supreme Court said, though fault can play a part in asset distribution and custody arrangements, "this does not mean that fault must be considered, only that it may be considered." Experienced attorneys in your area will have a better idea of which judges take adultery seriously and which judges find it completely irrelevant to your case.

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