The end of a marriage is always difficult, and a divorce can be as complex as it is painful. When going through a divorce, many people wonder what factors will matter, if their marriage will be treated differently than any other marriage, or if they will get stuck making alimony payments for the rest of their lives. Some people are uncertain as to whether they are even legally married. No matter what questions and worries you have, our experienced team will help you navigate the divorce process with ease.
In matters that involve infidelity, there is rarely a clear right or wrong side as many factors can contribute to one spouse getting involved with a paramour.
Courts generally analyze the impact of infidelity in the divorce by examining five factors: evidence, the existence and age of children, if money was spent on the affair or paramour, if the other party is seeking a ‘no-fault’ divorce, if children were exposed to the paramour, and whether or not the cheating spouse is forthcoming with the court.
Regardless of which side you’re on, you’ll want a lawyer who can effectively present your side of the story—that’s where we come in. We have years of experience successfully articulating our clients’ side of the story and developing appropriate legal strategies to support them.
The standard to which one must prove infidelity is by a burden of Clear and Convincing Evidence. The Clear and Convincing Evidence Standard is a standard that dictates that the evidence offered has a high probability for truth. Depending on the circumstances of the affair, testimony that the spouse was unfaithful may not be enough to meet this standard. Pictures and documentary evidence can be useful, but not all documentary evidence is seen as useful, nor does physical evidence always exist.
Some spouses choose to hire private investigators to obtain evidence of infidelity. Generally, a private investigator must be disclosed. There are other legal means to collecting evidence that can help to prove an affair (like obtaining financial records and phone records), so you should consult with an attorney experienced in handling these delicate matters strategically and in a way that helps your position in court.
Knowing if the cheating spouse spent marital assets on affairs is essential. If a spouse spends community property on their paramour—and the expenses or gifts are provable—then the faithful spouse may be entitled to a disproportionate share of the community estate or other compensation. If the standard of proof is met, the court will reconstitute the community estate, (meaning the cheating spouse’s half of the marital estate will be used to ‘pay back’ the marital estate).
If there are children involved in a divorce, the court may make orders for the protection of the children and make determinations about the cheating spouse’s parenting based on whether the cheating spouse has prioritized their affair over parenting. The court wants to ensure that children are not exposed to paramours, as this may have a negative impact on the child. If the paramour has been in the presence of the children, especially at the objection or lack of input from the other spouse, the court may issue a restraining order and require therapeutic involvement.
The court will also consider the character and background of the paramour to determine the judgment of the introducing spouse. Introducing children to a paramour who has a criminal history or issue with drugs, alcohol, or domestic violence, may significantly impact the parent’s credibility.
In Texas, divorces are granted based on reasons or ‘grounds’ for the divorce. If it is proven that either spouse committed adultery, that spouse may be found at fault in the dissolution of the marriage. In a No-Fault Divorce, neither party is held responsible. Additionally, even if the spouses were living apart at the time the affair began, Texas does not recognize legal separation, and the actions of the cheating party will still be considered adulterous.
Spouses often attempt to hide their affairs from their partner, so it should not be surprising that they may try to deceive the court or even their attorney. Some people are embarrassed by their affair, want to maintain innocence so their spouse won’t punish or resent them for their actions, or think they are protecting their spouse from pain by denying the truth. Fortunately, we are skilled in analyzing facts and indicators that infidelity or financial infidelity exist.
If you are the spouse that committed adultery, you must be honest about the affair. If caught, failure to be forthcoming can result in an unfavorable outcome in your case, and it may negatively impact your credibility.