Does Adultery Really Affect Divorce?

Turn on any radio station and you’re bound to hear a song or two (or 10) about someone’s cheatin’, lyin’ partner. Maybe the lyrics are about the singer’s heartbreak, or maybe they’re about revenge, but they’re ultimately about the betrayal.

Art, however, does not always mimic life. And while adultery and cheating are popular themes in art, your actual divorce under the grounds of adultery is likely to take a far different path. In Texas, adultery can affect a divorce – but perhaps not in the ways that you think.

What is adultery?

There are many “definitions” of adultery. For example, some people may think that adultery is when their spouse forms an emotional connection online with a person across the world. Others might believe it only includes sexual contact to some degree. When you’re seeking a divorce, however, the only definition that matters is the one recognized by the State of Texas and its court system.

Since 1929, the courts have recognized adultery as “voluntary sexual intercourse of a married person with one not the husband or wife of the offender.” (Lawler v. Lawler, 15 S.W.2d 684)The original definition comes from the criminal code, but in the intervening years, “adultery” has become a civil issue for family courts.

Texas takes legal adultery seriously, but it must be a sexual connection instead of an emotional or mental connection formed through texting, emailing, or talking on the phone. (In such cases, you can argue that your spouse is “cheating” on you, but not that he or she has committed the legal act of adultery.) While those behaviors are enough to cause a spouse to want a divorce, Texas requires proof of sexual intercourse before a person can claim legal adultery as grounds for divorce.

How can you prove legal adultery?

It can be very difficult to prove legal adultery in the state of Texas. However, it is not impossible with the help and guidance of a San Antonio divorce lawyer. Some of the evidence that may be able to help you prove adultery includes:

• Text messages or emails talking about the act(s) of infidelity
• Recordings of conversations about the cheating incident
• Photographs or video footage of the two people meeting up at a hotel, at the couple’s home, or any other location
• Documents that show the spouse paying for an unexplained hotel room or other expenses that may indicate a cheating incident occurred
• A confession by the cheating spouse or the other individual that they cheated with
• Eyewitness testimonies (hotel workers or other individuals who may have seen the two people together)
• A paternity test for a child born outside of your marriage

Your evidence must be enough to convince the jury that your spouse is having sexual relations with another person outside of your marriage.

I have proof that my spouse committed legal adultery, but is it worth my time to share it with the court?

Texas is a no-fault divorce state. This simply means that couples do not have to give any reasoning or explanation as to why they want a divorce. In fact, they do not need to provide any proof of fault or wrongdoing to be granted a divorce. There are currently 17 states across the country that are no-fault divorce states.

Many people describe adultery as humiliating. Therefore, you may be wondering if it is worth your time to put yourself through that and share your proof of adulterous acts with the court. While you can certainly provide this proof to be granted a divorce, it is actually not necessary. The reason for this is because Texas will grant a divorce between two parties regardless of whether or not adultery occurred.

However, when it comes to property division, adultery may make a difference. Texas is a community property state, meaning that all property obtained throughout a couple’s marriage typically belongs to both spouses. When going through a divorce, it is expected that the couple will receive an equal share of all assets and property. However, if one spouse claims that the other committed adultery, the property division process may be different.

For example, if there is evidence showing that the cheating spouse used the couple’s property or assets to commit their adulterous acts, the judge may give more than 50 percent of the property to the innocent and non-cheating spouse. This will be considered compensation for their losses. To put this into perspective, if a couple’s marital property equals $150,000, a judge may decide to give the cheating spouse $65,000 and $85,000 to the innocent and non-cheating spouse. In the eyes of the judge, this may seem fair as one spouse committed adultery, and the other suffered damages as a result.

If there is proof of money, expenses, or gifts paid for by the cheating spouse to the individual that they cheated with during the marriage, there is a good chance that the judge will also take this into account. This money was spent to benefit the cheating spouse. Therefore, the judge may make the decision to give other assets to the non-cheating spouse since part of the money they may have received during the property division process was spent on adulterous acts.

Does adultery affect child custody or visitation?

When children are involved in a divorce, things can become extremely messy. If your child knows or was exposed to your spouse’s cheating, the judge may take this into consideration when determining child custody or visitation rights. Depending on how this affected the child, the judge may decide to award custody to the innocent spouse and give less visitation time to the cheating spouse. If the child is unaware and unexposed to your spouse’s cheating, their possibility of getting custody or visitation will not be impacted.

The San Antonio divorce attorneys at Grable Grimshaw PLLC are here to help you navigate the challenges and obstacles of the divorce process. We know and understand that choosing to divorce is one of the hardest decisions a person can make, which is why we will lend you a helping hand and ensure that everything remains as smooth and stress-free as possible. Call or contact our firm to schedule your free case review today.