Adultery is a fairly common cause for divorce. Although some couples’ relationships can recover from an affair, in many cases, the trust and respect between the couple is irreparably damaged when one chooses to have an affair. In Texas, adultery is defined as any act of sexual intercourse with an individual who is not one’s legal spouse.

When an individual causes his or her marriage to end through adultery, his or her spouse has the right to file for a fault-based divorce on the grounds of adultery. Filing a fault-based divorce in Texas is quite different from filing a no fault divorce. One key difference is that when an individual petitions for a fault-based divorce, he or she must prove to the court that the alleged fault did actually occur and cause the breakdown of the marriage. Other faults an individual may cite in a divorce petition are cruelty, abandonment, incarceration, and felony conviction.

How Adultery Affects an Alimony Order

When one spouse is unable to enter the workforce immediately following a divorce, he or she may receive alimony. Alimony, also known as spousal maintenance, is the payment one former spouse makes to the other following their divorce to help the lesser earning spouse avoid financial difficulty in the months and years that follow the divorce. How long an individual receives alimony after his or her divorce depends on how long the couple was married, and how much he or she receives is determined by a variety of factors, including his or her current vocational skills, his or her earning potential based on his or her skills, work history, and experience, his or her contributions to the household, and his or her age and health.

The court also considers whether either spouse committed adultery during the marriage. One important component of this consideration is whether the adulterous spouse spent marital funds on his or her affair partner. This can be through actions as simple as buying dinner for the affair partner or as complex as renting an apartment for him or her. Another component of considering adultery when determining an alimony order is using the alimony order as a way to “punish” the adulterous spouse. If the spouse seeking alimony had an affair, the court may choose to deny the request. If the spouse seeking alimony was the one cheated on, the court may consider this when determining a fair alimony order.

As long as the couple is legally married, any instance of sexual intercourse with an individual outside the marriage is considered an act of adultery. This is true even when the couple is living apart. Texas does not recognize legal separation, so it does not matter whether a couple lives together or has been apart for years – all legally married couples are equal.

Under all circumstances, alimony in Texas cannot exceed $5,000 per month or 20 percent of the paying spouse’s gross income, whichever is lower.

Proving that your Spouse Committed Adultery

If you allege that your spouse committed adultery and that the adultery caused your marriage to fall apart, you must prove to the court that your allegation is accurate. You can do this by providing evidence of your spouse’s affair. Your lawyer can help you obtain and use this evidence effectively. Evidence to support a claim of an affair can include:
● Copies of emails;
● Copies of text messages;
● Copies of messages and posts shared via social networks;
● Documentation of a spouse’s account on a dating website or app and proof that he or she used the account to engage in sexual intercourse with another individual;
● Transcripts of phone calls discussing the affair;
● Photos and videos of the spouse with his or her affair partner;
● Copies of receipts or credit card statements for trips, gifts, and other expenses associated with the affair; and
● Testimonies from parties with firsthand knowledge of the affair.

With sufficient circumstantial evidence of your spouse’s affair, you do not have to prove that sexual intercourse actually occurred. If you do not have sufficient evidence to prove that your spouse had an affair, you might not be able to obtain a fault-based divorce. When this is the case, you can still file for a no fault divorce and end your marriage.

Other Ways Adultery Impacts a Divorce

Adultery can also affect house a couple’s community property is divided in their divorce. This is not true in many states, but it is true in Texas. The spouse who committed adultery may be given a smaller share of his or her marital assets than the victim spouse. Specific dollar figures may be deducted from the couple’s total net worth if the victim spouse can provide proof that the adulterous spouse made specific purchases for his or her affair using marital funds.
It is rare for adultery to impact a couple’s child custody order, but it can happen. Typically, this is the case when the adulterous parent’s infidelity somehow impacted the children, such as abandoning them in favor of the affair partner.

Adultery can also make it impossible for the couple to end their divorce through mediation or collaboration. Choosing one of these methods over litigation is a personal choice for a couple and they are only possible when the couple can work cooperatively to determine their divorce settlement’s terms. In many cases, adultery makes it impossible for a couple to work cooperatively.

Work with an Experienced Austin Divorce Lawyer

If you know your spouse has committed adultery, you have the right to pursue a fault-based divorce and to have your alimony and property division orders altered in your favor because of how you were treated. Work with a lawyer who can provide compassionate legal advice and goal-oriented legal representation as you work through your divorce. To start working with an experienced Austin divorce lawyer, contact the Law Office of Ben Carrasco, PLLC today to set up your initial legal consultation in our office.

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