Adultery is a commonly-cited cause of divorce for couples across the United States each year. While some marriages can survive instances of adultery through counseling and time, there are others that will not be able to make it through such an event. As a result, divorce may be appropriate. However, what are some considerations one should think about when addressing adultery and its effects on the division of assets? Depending on whether you are the spouse who had the affair or the one who was cheated on, you will find there are certain advantages and disadvantages to this scenario when dividing assets. To understand how this happens, a discussion of no-fault versus fault-based divorces is necessary.
No-Fault Divorces – the Texas Standard
Texas’ standard divorce claim is no-fault divorce. This means that the filing party just states that marriage has become unsupportable. This standard language is code for the fact that nothing is really being claimed and no one is being blamed with regard to the breakdown of the marriage. As a result, the division of property in these cases is usually 50-50, or as close to 50-50 as possible. This means that any interests in real property, joint bank accounts, personal property, etc. are equitably divided between spouses.
Fault-Based Divorces – The Exception
When you feel your marriage broke down due to someone’s specific acts, then it is possible to claim that they were the reason for the marriage becoming insupportable. This is what a fault-based divorce implies. There are different reasons under Texas law that someone could be at “fault” for the dissolution of a marriage, but the two most relevant for this particular topic are abandonment and adultery. These claims permit the victimized spouse to request a greater share of the assets as compensation for what they have suffered. This also allows them to potentially receiving spousal support, depending on who files first for the divorce.
Advantages of Adultery on Division of Assets
If you are the party that was cheated on, the adultery will be an advantage to you during the division of assets. You will be able to request an unequal division of the assets as a result of your spouse’s cheating. You may be eligible to receive: spousal support, a greater portion of any retirement accounts, a greater share or interest in any real property, and less of the community debts. You may also be able to request reimbursement for any communal money your spouse spent on the extramarital relationship.
Disadvantages of Adultery on Division of Assets
If you are the one who cheated on your spouse, your adultery will be a disadvantage to you during the division of assets. Obviously, any of the advantages listed above are the disadvantages for you, being the party who cheated. Furthermore, courts tend to be slightly more biased against a spouse who committed adultery being the first to file for divorce. For this reason, judges will often order spousal maintenance, such as alimony, and a greater portion of the assets than they otherwise would have ordered. If the advantaged spouse files first, then it makes the disadvantaged spouse’s counterclaim and request for maintenance that much more compelling. If the disadvantaged spouse files first, on the other hand, then it is somewhat more difficult for them to claim maintenance.
Is All Lost, Then, if I Cheated on My Spouse?
The short answer is: not necessarily. The answer is ambiguous because judges in divorce cases where adultery has been claimed can decide for themselves how much that fact will influence their decisions. The law permits the judge to consider adultery, and for a spouse to seek property division preferences because of it, but it guarantees nothing. As such, certain aspects of the law and social norms will play a large role in determining just how “unequal” the division of the community estate assets will be.
What Can An Attorney Do For Me?
An attorney can help you determine what rights you have in your particular legal situation and help you divide your community property in the most rewarding way possible. Whether you want to be reimbursed from a cheating spouse or want to retain the property you are afraid you might lose after an affair, an attorney can make the best arguments possible to the court and the opposing counsel to get you the results you deserve. Before you try to settle your case with your spouse on your own, contact an experienced attorney to talk about your case and rights.
Contact Us Today
If you or your spouse has committed adultery and are now seeking a divorce, contact Holmes, Diggs & Sadler today to figure out what your options are and what you can receive in your divorce. Whether you are the party seeking more of the assets or you are trying to protect your interests against a spouse, our Houston property division attorneys can help you. Contact us today at (713) 766-5355 to schedule a consultation.