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Adultery—How Much Does it Really Matter?

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By: Alyson Falk

Our divorcing clients come to us from both sides of the adultery fence—as the cheating spouse, and as the scorned spouse. What everyone wants to know is: How much does it really matter? As you might expect a lawyer to say: That depends!

If the cheating spouse spent a lot of money…

Adultery is most relevant in a divorce case when the cheating spouse has spent significant community funds pursuing adultery. The total money spent will impact the overall division of the marital estate. When community funds are spent on an affair, that is “waste” of the community estate. Generally, the innocent spouse’s share of the community estate should be made whole from the waste caused by the cheating spouse, which requires a detailed analysis done by your legal team.

Analysis of waste claims and how they impact marital estate divisions is never simple. It is important that you are represented by an experienced family law attorney to present your waste claim, or defend you against one!

If you’re married…

Texas is a No-Fault state, which means, among other things, that you do not have to prove adultery for the Court to grant a divorce. (If you want a divorce in Texas, you can get a divorce in Texas!)

However, the Court can consider the fact of adultery when dividing the community estate. The Court’s guiding principle when dividing a marital estate is, “fair and equitable,” which often is interpreted to mean 50/50. When there has been adultery, the Court may award a “disproportionate division” of the marital estate in favor of the innocent spouse. But, not always – which is why it is important that you are represented by an experienced family law attorney to understand the claims involved in your divorce case.

Because of how complicated it is to successfully present claims relating to waste or a disproportionate division of a marital estate, it is very unlikely a Court will consider them in your divorce case if you are not represented by an experienced family law attorney.

If you have children…

If you have children, you may want to protect them from the fact of the adultery for as long as possible. Consult with an experienced family law attorney to determine what is best for your family and how you can accomplish your goals. On a temporary basis, maybe this means the children cannot be in the presence of “paramours” (girlfriends, boyfriends, intimate friends, etc.), or that you and your spouse are prohibited from discussing the case in the presence of your children (always a good rule of thumb anyway!).

If your children are already experiencing distress as a result of the adultery, then you may need more nuanced custody orders for their safety and well-being. Parent-child matters are always highly fact specific, so it is imperative that you consult with an experienced family law attorney to discuss the facts of your case and your goals for your children so you can come up with a plan to protect your children’s best interests.

Takeaway this…

In MANY CASES, adultery is remarkably less relevant than a divorcing spouse expects it to be – sometimes essentially a nonissue – which is why you should invest in time with an experienced family law attorney regardless of which side of the fence you find yourself on to understand how it may impact your divorce proceeding.

If you have questions, let the experienced family law attorneys at Lazar Law can help you make sense of it. Send us an email or call 512-477-1600 to schedule time to talk with us.

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