There are two parts to a divorce case – child custody and property division. Adultery can affect both, but it does not always affect the outcome of a case. Clients frequently ask me if they can get sole custody because their spouse has committed adultery. The answer to that is usually no. Absent exposure to emotional or physical harm to the child as a result of the adultery, adultery alone is usually not enough to keep the adulterous parent from having joint managing conservatorship of the children.
There are cases where the adulterer has been awarded primary conservatorship of the children because the “innocent spouse” poisoned the children of the marriage against the adulterer. While this is not usually the outcome divorce litigants consider, it is important to note that the Courts in Texas take the innocent spouse’s actions into account when determining custody in an adultery situation. The general premise Court’s consider when determining custody is best interest of the child in comparison to all of the circumstances applicable to the situation.
Adultery can affect the property division in a divorce. In some cases, a spouse can receive a disproportionate share of the community estate – more than 50% – because the other spouse committed adultery. However, this may not apply to every case. Clients ask me if they can get everything because of adultery. The answer is usually no. It is rare for a spouse to receive more than 60% of the community estate, and those cases involved extreme physical abuse that left a spouse maimed. Adultery usually does not rise to the level of a 60% disproportionate share of the community estate, and in some cases, it will not rise to a disproportionate share.
Whether adultery affects a case is very fact specific. For example, if one spouse gives the other spouse a sexually transmitted disease during the marriage, the innocent spouse may receive a higher percentage of the community estate. Not all cases where adultery has occurred will result in a disproportionate share of the community estate. It is important to consult with a family law attorney to discuss the facts of your case and determine the options that you may have.
About The Author: Rachel Li is a Texas Family Law Specialist, board certified by the Texas Board of Legal Specialization, and can discuss the facts of your case with you and help you with the options for you and your family. Contact Rachel Li today.