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How Adultery Affects Divorce in Texas

Curtis W. Harrison | September 10, 2021

Divorce is one of the most challenging and emotional experiences someone can go through, no matter the circumstances or how amicable the decision is. For spouses impacted by adultery, however, the pain runs even deeper. They each begin to wonder, “Will the infidelity have any effect on the outcome of my divorce?” The answer might surprise them both, for it can affect a Texas divorce in unanticipated ways.

As a starting point, Texas is considered to be a “no-fault” state. That means neither spouse is required to formally cast blame on the other to justify seeking a divorce. For that reason, regardless of the actual underlying reasons for the divorce, most divorcing couples simply cite “insupportability,” which is the Texas version of “irreconcilable differences,” as the legal ground. 

Adultery is a Fault-Based Ground for Divorce

Nevertheless, fault-based grounds, such as adultery, do exist. This is potentially significant because even though Texas is a community property state, courts are not required to divide everything 50/50. In reality, courts are charged with the responsibility to divide community assets and liabilities in a “just and right” manner, after considering the facts and circumstances of both spouses, as well as any children of the marriage. This gives the fact finder some latitude to award a disproportionate share of the marital estate to one spouse.

Theory v. Reality

In theory, as a fault-based ground, adultery can be alleged as one of the reasons to gain a larger share of the community estate or to justify a request for post-divorce spousal maintenance (alimony). The rationale is rooted in precepts of equity: The innocent should not be punished, and the wrongdoer should not be rewarded.

In practice, however, pursuing a claim of adultery can lead to unintended results. Whether true or not, accusing a spouse of adultery in a legal document almost invariably escalates the emotional toxicity and financial costs of the divorce process itself. Reasons can vary, but the bottom line is that any organic reluctance the accused might have to admit wrongdoing is reinforced by the fear the divorce process itself generates. Litigation attorneys are trained to not only routinely resist disclosing their clients’ bad facts to the other side, but we also counsel clients to hold such information close to the vest because of the negative impact the disclosure can have on the outcome of the case. Ethical lawyers never counsel their clients to lie, of course, but neither do they recommend that their clients volunteer an answer until the lawyer has exhausted all efforts to ethically obfuscate or redirect the inquiry.

This resistance, in turn, leads to a natural and predictable reaction. The innocent spouse is typically already in the throes of strong feelings of betrayal. Those feelings can devolve to unhealthy levels of anger or even rage as the focus of the divorce litigation zeroes in on the adultery issue. Left unaddressed, these incredibly powerful and negative emotions tend to override judgment and reason. As the divorce litigation unfolds, both spouses could therefore find themselves locked into an escalating cycle of legal conflict being fed by various forms of denial juxtaposed with a mushrooming passion for justice – if not retribution. 

The End Result

When the smoke clears following the resolution of the divorce, even previously healthy co-parenting relationships are in tatters, the children are caught in the crossfire of “no man’s land”, and everyone involved is emotionally exhausted. Ironically, the final property division usually does not differ substantially from the result that could have been achieved at a lower cost without dropping the “A” bomb in the first place. The reason is that the vast majority of divorce suits in Texas ultimately resolve prior to final trial by reaching an agreement; and most property divisions range from 50/50 to 60/40, even when a fault-based ground is taken into consideration. Put another way, “going nuclear” by alleging adultery or another fault-based ground can affect the outcome of the divorce —  but those effects are almost universally harmful to everyone involved.

Conversely, even in divorce, using the carrot has empirically proven to be at least as effective as the stick in negotiating a favorable property division in most cases. For the innocent spouse, this could mean taking the high road through the divorce process despite what has transpired up until now. You might even consider proceeding through the process using a non-adversarial method, such as the Collaborative Divorce method. For the transgressing spouse, never underestimate the power of an earnest, heartfelt apology. It cannot change the past, but it could help to set the stage for a less destructive future for all concerned.

If you are looking for an experienced Texas family law attorney who will help you work towards a civil resolution, contact Goranson Bain Ausley. We will be there to help every step of the way.