Infidelity is a frequent topic brought up by our clients. Texas is a no-fault divorce state which means if a spouse wants a divorce, the other spouse is not required to have committed a "bad act." See Tex. Fam. Code Sect. 6.002-.007. Lately there have been several public figures that have revealed their extramarital affairs. Coupling this with the frequency adultery is brought up by our clients, a primer on adultery as a ground for divorce is appropriate.
Under Section 6.003 of the Texas Family Code, adultery is a ground for divorce. As a Dallas divorce lawyer, my experience is that adultery usually is not the cause of divorce. Although infidelity is is commonly reported as a cause of divorce, several studies show that the majority of couples who discover infidelity remain married to the unfaithful spouse for several years following their discovery. Additional studies at the University of Washington and University of North Carolina report that occurrences of adultery are declining and that the strongest risk factor for adultery is one occurring outside of the marital relationship – opportunity.
Under the adultery fault ground found in the Texas Family Code, one spouse is required to show that the other engaged in sexual intercourse with one not their husband or wife. Without diving into semantics, Texas courts take a literal approach in construing the term intercourse. As a result, proving adultery is very difficult to do.
Assuming a party to a divorce is able to prove adultery occurred, courts take different approaches in deciding what impact that conduct will have in dividing the marital estate. It comes as a shock to most people that a lot of courts take a "so what" approach – meaning adultery has little, if any, impact on the remainder of the divorce proceeding. This is especially true if the couple’s status quo prior to filing for divorce was one of marital discord. Courts do, however, examine adulterous conduct very closely when it was committed in front of children of the marriage; the timing of the affair prior to filing for divorce; and where the adulterous conduct occurred. The minority of courts consider adultery an atrocious act, hate what it does to the marriage relationship, and divide the marital estate disproportionately as a result.
Although a fault ground for divorce, adultery is also an act of betrayal against your spouse. Committing adultery causes an untold pain which rapidly turns into anger. This anger will cause the innocent spouse to inflict the most amount of pain and burden on the other spouse during the divorce proceeding.
If you suspect that your spouse is having an affair, and you are considering ending the marriage, you should understand that proving adultery is very difficult, and if the offensive conduct did not occur in front of the children of marriage, adultery generally does not cause a court to deviate a significant amount from a 50/50 split of the community property. Finally, remember that you do not have to navigate the divorce process on your own. Contact a competent Dallas divorce attorney to help guide you through the maze.