In order to obtain a divorce in Texas, a petitioner must prove to the court that there is at least one ground for granting the divorce. Texas law divides grounds for divorce into two categories:
The Texas Family Code classifies adultery as a fault-based ground for divorce. Under Texas law, and for the purposes of obtaining a divorce on fault grounds, adultery is defined as “the voluntary sexual intercourse of a married person with one not the spouse.” All divorcing couples should take note that adultery is not limited to actions taken before separation and that two people are considered legally married until the judge issues its divorce decree. This means that if, for instance, either party engages in sexual intercourse with another person four months after filing for divorce (but before the divorce decree has been issued), they have committed adultery in the court’s eyes.
In order to prove to the court that their spouse has committed adultery, an individual can present direct or circumstantial evidence. Examples of such evidence include admission by the other spouse, emails, text messages, photos, videos, phone records, bank/credit card statements, or testimony from a private investigator. The evidence must be clear and positive in order to legally establish adultery; mere suggestion or innuendo is not enough (i.e. “I have a feeling that she is cheating” won’t cut it). If the court makes a finding of adultery, oftentimes the divorce will be granted on such fault-based grounds. However, the court has discretion to choose among all reasons supported by the evidence for granting a divorce and can still grant a no-fault divorce.
The most common question is “how will a finding of adultery impact the division of property in my divorce?” In Texas, a divorce judge has wide discretion in dividing community property and will do it in a way that she “deems just and right” (essentially – the judge will divide the property fairly). Fault grounds, such as adultery, can impact this division. If you prove to the court that your spouse committed adultery, that information will be taken into consideration when property is divided and, depending on the facts and circumstances of your case, you may be entitled to a disproportionate share of the community estate.
If your divorcing spouse committed adultery, it could affect the outcome of your case and you need an experienced divorce litigation attorney who will zealously fight for your rights. Contact Kirker Davis LLP to schedule a meeting with a family law attorney today.