One of the most common questions asked at the beginning of the divorce process is whether a spouse’s infidelity will affect child custody. Texas is one of the few remaining states that allow divorce based on fault grounds as well as on the “no fault” ground of insupportability. Adultery is defined by the Texas Family Code §6.003 as “the voluntary sexual intercourse of a married person with one not the husband or wife of the offender.” It is worth noting that this definition of adultery does not include “emotional cheating,” such as e-mails, texts, virtual sex or other activities aside from actual physical intercourse between two people. That being said, it is difficult to prove adultery in court.
Even if a claim of adultery is supported by evidence, there is usually little impact on the child custody portion of the divorce proceeding. The primary impact of a proven adultery claim is on the division of property, including the possible award of spousal maintenance. A proven allegation of adultery can substantiate a claim that the adulterer was at fault for the marriage’s breakup and, thus, that the innocent spouse should be entitled to a disproportionate share of the community estate. However, an allegation of adultery, even if proven, may not substantiate a claim for a disproportionate division of the community estate if the adultery took place too long ago or if the spouses were reconciled after the affair came to light.
Cynthia Palmer
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