In Texas, adultery or infidelity may play a significant role in how a divorce unfolds, impacting asset division in a divorce and even custody issues to a certain extent. Here’s how adultery generally affects the divorce process in Texas:

1. Grounds for Divorce:

• No-Fault Divorce: Texas allows for “no-fault” divorces, where neither spouse has to blame the other for the breakdown of the marriage. Commonly, the reason cited is “insupportability,” which means that the marriage has become insupportable due to discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.
• Fault-Based Divorce: Adultery is also one of the grounds for a fault-based divorce in Texas. If one spouse can prove the other’s infidelity, it can influence the divorce proceedings, particularly in financial settlements and custody decisions. The Court of Appeals has given the following definition of Adultery: “the voluntary sexual intercourse of a married person with one not the spouse.” In re S.A.A., 279 S.W.3d 853, 856 (Tex. App.—Dallas 2009, no pet.)

2. Impact on Division of Assets:

• In Texas, the court divides marital property based on what is “just and right.” While this typically starts with the presumption of a 50/50 split, proven adultery can lead the court to award a more favorable division to the non-adulterous spouse. This is because the court may consider the circumstances and factors under which the property was acquired and the behavior of the parties during the marriage. Such factors include: Such factors include (1) the nature of the marital property, (2) the relative earning capacity and business opportunities of the parties, (3) the parties’ relative financial condition and obligations, (4) the parties’ education, (5) the size of separate estates, (6) the age, (7) health, and (8) physical conditions of the parties, (9) fault in breaking up the marriage, (10) the benefit the innocent spouse would have received had the marriage continued, and (11) the probable need for future support. Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981).

3. Impact on Child Custody and Visitation:

• While adultery by itself does not necessarily impact custody arrangements, the circumstances surrounding the adultery might. For instance, if adulterous behavior also involved other conduct that could be deemed harmful to the children it could influence the court’s decisions regarding custody and visitation rights. More common repercussions for Adultery or Infidelity in a divorce are what the Court’s call a  “morality clause”. This provision usually prohibits one parent from having a romantic third-party guest stay in the house while the children are present from 8:00 pm to 9:00 am the next day.

4. Proving Adultery:

• Proving adultery in a divorce case requires evidence that convinces the court of the likelihood that infidelity occurred. Direct evidence is not necessarily required; circumstantial evidence that suggests the likelihood of both opportunity and inclination to commit adultery might suffice. The burden of proof is the preponderance of the evidence, thus just a little more than 50%. It should be known that actions of adultery and infidelity are still probably even after separation and during the divorce litigation. 

Adultery and Infidelity are not as damaging in the modern era, though it is completely fact intensive and dependent on the Judge in your case. Some Judges take Adultery in a Texas Divorce more seriously than others. It is a liability to mitigate if it has occurred. 

Julian Nacol
Nacol Law Firm P.C.
Dallas Divorce Attorney
(972) 690-3333

During the Holiday season many Texas parents become very concerned over sending their child to the non-primary conservator parent’s home for a visit. Many Children will cross state lines to see their non-primary conservator parent and there is always a fear that the child may not be returned to his/her home state. What can you do if this does happen?

The State of Texas follows a uniform law regarding determination of appropriate state jurisdiction in custody matters known as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), and related statutes which enforce or set procedures regarding proper jurisdiction such as the Parental Kidnapping Prevention Act. Texas has adopted these statutes. The Uniform Child Custody Jurisdiction Enforcement Act defines which state has or may maintain jurisdiction in a particular case and often mandates that other states recognize decisions handed down by the state determined to have jurisdiction.

The Act states, among other things, that a court may rule on custody issues if the Child:

• Has continually lived in a home state for 6 months or longer

• Was living in the state before being wrongfully taken elsewhere by a parent seeking custody in another state

• Has an established relationship with people (family, relatives or teachers), ties, and attachments in the state

• Has been abandoned: or is safe in current state, but could be in danger of neglect or abuse in the home state

How can Continuing Exclusive Jurisdiction be lost?

1. When A Texas Court determines that neither the child, or a child and one parent have a significant contact with Texas, and substantial evidence is no longer available in Texas concerning the child’s care, protection, and personal relationships

2. Texas or another state determines that the child and the child parents do not presently reside in Texas.

What about Jurisdiction to Modify an Existing Order?

In the absence of temporary emergency jurisdiction, Texas cannot modify a child custody decision made by another state’s court unless or until a court of this state has jurisdiction to make an initial custody determination and one of the following occurs:

1. Another State determines it no longer has continuing jurisdiction or finds that Texas would be a more convenient forum.

2. A court determines that the child and the child’s parents do not presently reside in the other state.

What about Temporary Emergency Jurisdiction?

Temporary emergency jurisdiction is reserved for very extraordinary circumstances. The court has and may assert jurisdiction only when a child is present in the state and has been abandoned or is in need of protection because of a threat or subjected the child to mistreatment or abuse.

When involved in an international child custody case where the child has been abducted or is wrongfully retained, the issue may be determined if the International Child Abduction Remedies Act, 12 USC Section 11.601-11610, of the Hague Convention, is applicable. If so, The US State Department Office of Citizen & Counselor Services should be contacted or any attorney may file suit for return of the child.

These interstate jurisdiction cases are very intensive. Get to a knowledgeable interstate jurisdiction attorney and assert your rights quickly. Protect you and your child’s rights to have a normal child/parent relationship without the fear of abduction!