When a marriage ends due to infidelity, many assume that the cheating spouse will automatically be penalized in the divorce settlement. This is a common but often incorrect assumption. The legal system views “fault” differently than the average person does.
Before you develop your legal strategy, it is crucial to understand the two main categories of divorce states and how adultery can impact your financial and custody outcomes.
Adultery as a ground for divorce
Texas is a community property state that allows for both no-fault and fault-based divorces. No-fault means you simply claim the marriage is insupportable due to disagreements you cannot fix. A fault-based divorce, however, allows you to specifically cite your spouse’s adultery as the reason for the marriage’s end.
Proving infidelity lets the court consider your spouse’s conduct when making key decisions on property division, child custody (conservatorship in Texas) and spousal support. This is not about revenge, but about establishing a legal ground that influences other aspects of your divorce settlement.
On property division
The most significant legal effect of adultery often appears in the division of property. Texas courts divide marital assets in a “just and right” manner, which usually means a 50/50 split.
If you can prove your spouse committed marital misconduct, however, the court may gain the discretion to award you a disproportionate share of the community estate. If your spouse spent marital funds on the affair, such as buying gifts, paying for trips or renting hotel rooms, the court may also require your spouse to reimburse the marital estate for this waste of community assets.
It is critical to understand that courts do not punish cheating just to punish it. They aim to make the property division fair, considering the fault that broke the marriage.
On spousal support
The issue of spousal maintenance, often called alimony, may also change when adultery is a factor. Texas law sets strict rules for a spouse to qualify for spousal maintenance in the first place.
If the spouse requesting financial support committed infidelity, the court may deny or reduce the award. Conversely, if you are the spouse requesting support and your spouse committed adultery, the court may look more favorably on your request.
On child custody
Texas courts focus exclusively on the child’s best interests when deciding conservatorship. A parent’s adultery, by itself, rarely causes them to lose custody or visitation rights.
The affair only becomes a major factor if it harms the children. For instance, if the cheating spouse exposed the children to inappropriate behavior or neglected their parental duties because of the affair, the court pays close attention. The focus always remains on the children’s safety and well-being, not on the moral failing of the parent.
Proving adultery in court
If you suspect your spouse is cheating, you will need to provide circumstantial evidence of their marital misconduct. Comprehensive documentation of the following is critical:
- Text messages or emails indicating a romantic relationship
- Photographs or videos showing intimate behavior
- Witness testimony
- Credit card statements showing suspicious purchases
- Phone records showing patterns of communication
But beware: Courts take special care to ensure you obtained this evidence legally. Violating privacy laws can result in the evidence being thrown out.
Protecting your rights and future
When going through a divorce with adultery in the mix, it is best to keep your emotions separate from your legal strategy. The law provides specific opportunities to hold an unfaithful spouse accountable, but you must also take the correct legal steps.
If you intend to use your spouse’s fault, building an airtight case is often achievable with sound legal planning. Your future stability may depend on it.