As with most questions in family law, the answer is “it depends.” It is true that adultery may influence the division of the marital estate (i.e., property acquired during marriage such as cash, cars, personal property, etc.), but that is not always the case. As this topic is very fact intensive and differs from case-to-case, the purpose of this article is to discuss the influence adultery may have on the division of property at a very basic and general level.
Before jumping into adultery specifically, it is helpful to understand basic principles of Texas law regarding division of the marital estate. First and foremost, a judge must order a division of the marital estate in a manner that the court deems “just and right” with due regard for the rights of each party and any children of the marriage. The “just and right” standard tells us two things: (1) the judge has wide discretion in dividing the estate; and (2) the judge may divide the property unequally among the parties (also known as “disproportionate division”). Because a judge possesses considerable leeway in dividing the marital estate, and each judge has his or her own point of view, the experience and knowledge of your attorney is important for advising you on how to approach a request for disproportional division and what you can expect.
A judge may consider several factors at divorce when dividing the marital property, one of which being fault in breaking up the marriage. While a judge clearly has discretion to consider fault when dividing the estate, the judge is not required to do so. In our firm’s experience, a judge is unlikely to put substantial weight on the fact that a spouse had an affair without compelling evidence that the marital estate has suffered financial harm or other equitable reasons. For example, finding out that your spouse had a one night stand with a co-worker in and of itself will unlikely sway a judge in your favor. So how do you show evidence of financial harm? Show the receipts (i.e., bank statements, deposition testimony, transfers of marital property, etc.). For instance, if your spouse has made sizable gifts to a paramour from the community funds—such as cash, a car, payment of bills, vacations, jewelry, clothes, etc.—then you may establish fraud on the community. If you establish fraud on the community, then the court may order your spouse to reimburse the community for the funds spent on the extra-marital relationship(s). To summarize, a common way to determine whether a spouse’s affair will have an impact on the property division is identifying how much community assets were spent on the extra-marital relationship.
And lastly, the strategy pertaining to your claims may be different depending on whether you are going to trial or mediation. Ultimately, whether adultery is a factor in the division of the property at divorce depends on the facts of the case.