Discovering infidelity in a marriage can be a devastating blow, shattering trust and leaving emotional scars that may take years to heal. Coping with the aftermath of adultery can be overwhelming, especially when considering the legal implications it carries in the context of divorce. If you have recently discovered that your partner has been having an affair, you may be entering the divorce process from a place of anger, betrayal, and feeling like a victim whose life is about to be turned upside down. These are common responses to discovering an affair. And just know that you are not alone in these feelings. Adultery is a common cause for divorce among Texans filing for divorce.
First – Is Divorce Necessary?
The first question you may be facing is whether you need to get a divorce because of adultery. However, there are many couples who decide to reconcile following the discovery of an affair. Those who choose the path of successful reconciliation acknowledge that this is going to be a difficult journey, and often are well served by an experienced marriage therapist who can help both parties navigate the intense emotions and healing that needs to happen for a marriage to be re-established. Couples who successfully reconcile understand that they really are building a new relationship, and that going to back to the comfort or complacency of the past is not going to be an option. This takes a strong level of commitment – by both parties.
If you have recently learned of an affair, and you and your partner are both wanting reconciliation, just know that it is possible. You do not have to get a divorce. There are many couples who go on to write a new chapter that is better than before.
But it’s also normal (and healthy) to decide you need to end the marriage. And sometimes, even if you wanted to reconcile, the other party may not be willing. In these times, the best decision you can make for yourself is to have the best divorce possible for you.
Texas Divorce Law: Navigating Fault and No-Fault
In Texas, divorces can be categorized as fault-based or no-fault. Fault-based divorces require one spouse to prove the others wrongdoing, such as adultery, cruelty, or abandonment. On the other hand, no-fault divorces do not assign blame and are based on the grounds of insupportability, meaning the marriage has become insupportable due to discord or conflict.
No-fault or uncontested divorces are more common and preferred in Texas, as you do not have to prove the reason for the divorce. This allows you to protect the privacy of your family, as the adultery is not asserted in the public divorce filing. Also, this allows you to put your focus on your future, instead of assigning blame. .
Fault-based divorces, on the other hand, can be more difficult and costly. If adultery was the main cause of the breakdown of your marriage. A skilled family law attorney can help you determine whether or not it would be best to pursue a divorce on the grounds of adultery. Some of the factors that weigh into whether you should file under no-fault grounds, or on the grounds of adultery, will be: the weight your judge is likely to give a finding of adultery, the persuasiveness of the evidence you have regarding adultery, and whether the case can settle under favorable terms without filing for the basis of adultery.
Also, it is possible to change your pleading – if you want to start off filing on the basis of no-fault grounds, you can later decide to amend your divorce petition to claim adultery if you believe that will be effective at obtaining a better settlement or outcome in court. Once you allege adultery, it can be very difficult (though not impossible) to negotiate a positive outcome without going to court.
Defining and Proving Adultery in Texas
It’s important to know what is, and is not, considered adultery in our legal system. Adultery in Texas is defined as voluntary sexual intercourse with someone other than one’s spouse. This may seem straightforward enough, but this definition has some implications.
Firstly, it means that not all behavior that may be considered “cheating” is considered adultery in Texas. Actions that most people would consider sexual such as kissing, groping, sexting, or even oral sex are not considered acts of adultery according to this definition. The specific act of intercourse with someone other than the spouse is necessary to file a fault-based divorce on the grounds of adultery. Secondly, these grounds must be proven by the spouse filing for divorce.
Proving adultery in court requires concrete evidence, such as an admission by the spouse committing adultery or eyewitness testimony. Circumstantial evidence such as hotel records, restaurant receipts or electronic communications may be suggestive but not definitive of an adulterous relationship. While suspicions or accusations may exist, establishing adultery as grounds for divorce requires substantial proof. This is where the help of an experienced divorce attorney is crucial. They can investigate the circumstances of your case and ensure you have the proof needed to build a strong case.
Does Adultery Affect a ‘No-Fault’ Divorce?
In a no-fault divorce, adultery can impact the legal proceedings. First, in the negotiation stage, the party committing adultery may be motivated to settle the case quickly. A motivated party may be willing to offer more in terms of a property division or terms that the other party considers favorable, in order to avoid a nasty lengthy legal battle. Even if the case doesn’t go to court, the court can still consider “wasteful spending” such as gifts, trips, etc. on the paramour in the final property division. You do need to plead for divorce on the grounds of adultery for adultery to impact the divorce proceedings. Therefore, even in a no-fault divorce, it’s essential to consider the potential implications of adultery and seek guidance from a qualified divorce attorney to navigate the process effectively.
Adultery’s Impact on Child Custody, Alimony, and Property Division
The presence of adultery can influence various aspects of divorce proceedings, including child custody and property division. While generally courts will not punish a parent by taking away parenting time or parenting rights because that parent had an affair, it is possible that the parent’s extramarital relationship negatively impacted the parent-child relationship by diverting the parent’s attention away from the child. Or, if the parent exercised poor judgment by involving the paramour in the life of the child prior to the separation, and that had a negative impact on the child, that could certainly be a factor the court will consider when allocating parenting responsibilities. However, for the most part, the court will want both parents to be involved in the life of the child, unless there is a compelling reason for restrictions to protect the safety and welfare of the child.
Legal Considerations and Communication Post-Affair Discovery
If you have discovered your spouse has had an affair, you will want to seek legal advice before talking to your children about the affair. All too often, the parent who discovered the affair wants the children to know the reason for the divorce, and this is not helpful for children. Children in divorce do not need to be brought into the discussion of WHY the divorce is happening – they do, however, need to know that both parents love them, and that both parents will be making decisions for the children. This is true whether you have young children, teenagers, or even adult children. A parent who attempts to ruin a relationship between the other parent and the children may face reprimand by the court, and more severe action if the inappropriate discussions continue. Most judges feel very strongly about this.
It is true that a finding of adultery is one of the many reasons a court may make a disproportionate division of assets in favor of the spouse who did not commit adultery. However, these days, this basis for a disproportionate division is less favored by many courts. When someone claims adultery, the other party is then on the defensive and the allegations about blame in the marriage escalate. If you believe you should be entitled to a disproportionate division of your community property estate, you will want to visit with your divorce attorney about other factors that may be more compelling for the court (e.g., disparity in income, business opportunities, education, separate property assets, or expected inheritance).
Seeking Legal Guidance with Divorce after Adultery
Adultery’s far-reaching implications underscore the importance of seeking legal guidance when facing divorce proceedings involving infidelity. Consulting with a knowledgeable divorce attorney can provide clarity on legal rights, obligations, and potential outcomes. With the guidance of experienced legal counsel, you can proceed with divorce with confidence and advocate for your best interests and those of your children.
Moving Forward with Resolution
While adultery can introduce complexity and emotional turmoil into divorce proceedings, it’s essential to focus on moving forward with resolution and healing. It is a normal reaction to want to “go for the jugular” when you discover your spouse has been having an affair. However, it is far more effective for you to put your focus on what you will need for your life after divorce, as opposed to trying to inflict pain on the other side. Inflicting pain rarely results in positive outcomes for anyone, much less the party who has already been hurt by the discovery of the affair.
Recognizing the impact of adultery on divorce outcomes underscores the significance of seeking appropriate legal counsel and support. As you navigate the challenges ahead, remember that you are not alone, and there are resources available to guide you through this difficult time. Embrace the opportunity to prioritize your well-being and pursue a future filled with hope and possibility.
