If your marriage is on the rocks, you’re likely curious about the comparison between separation vs divorce in Texas. What does the process consist of for each of these relationship paths?
The first thing you’ll want to know is that Texas doesn’t recognize legal separation. Couples are, of course, free to informally separate and even create agreements, but these agreements won’t be enforceable by a court.
On the other hand, divorce is a process that legally dissolves your marriage and clearly defines the outcomes for property division, support, and custody.
Let’s take a closer look at the differences between separation and divorce to help you determine the right course for you and your spouse.
Choosing between separation and divorce involves weighing the pros and cons of each option based on individual circumstances, needs, and long-term goals.
The first step, however, is to understand the basics of each process in Texas so you can choose how to best move forward.
In Texas, there is no legal recognition of separation.
Couples cannot file for legal separation, but they can choose to live apart informally. During this time, spouses may draft informal agreements on property division, child custody, and support, although these agreements are not legally enforceable.
While legal separation isn't an option, temporary orders can be requested if a couple is in the process of filing for divorce. These orders address immediate concerns like child custody and support until the divorce is finalized.
Living apart does not change the legal status of the marriage, meaning financial and legal ties remain intact. Consulting with a family law attorney can help draft informal agreements and prepare for potential divorce to protect individual rights and assets.
Divorce in Texas legally dissolves a marriage through a formal court process. To file, one spouse must reside in Texas for at least six months and in the county for at least 90 days. Texas offers both no-fault divorces, citing "insupportability," and fault-based divorces for reasons like adultery or cruelty.
Texas is a community property state, meaning assets and debts acquired during the marriage are divided equally, except for separate property. The court also determines child custody based on the child's best interests and calculates child support using state guidelines. Spousal maintenance may be awarded under specific conditions, such as long marriages or disability.
Legal representation is advisable to navigate the divorce process and protect individual rights. Financial planning is also essential to manage asset division, debts, and tax implications.
If you’re searching for more info about marriage and divorce law in Texas, check out some of our other guides:
Marriage Annulment vs Divorce in Texas: What’s the Difference?
Domestic Partnership vs Marriage in Texas: What Are the Differences?
There is a fundamental distinction between separation and divorce in Texas, with each having specific legal implications and processes.
Texas does not recognize legal separation, meaning there is no formal legal process to separate from your spouse legally.
Couples who live apart without divorcing may create informal agreements regarding the division of property, child custody, and support.
However, these agreements are not enforceable by the court.
In contrast, divorce is a legal process that officially dissolves the marriage. Through divorce, the court issues orders regarding the division of property, child custody, and support, which are legally binding and enforceable.
In the case of separation, couples can draft informal agreements on various matters such as property division, child custody, and support. While these agreements can help manage the separation, they lack the enforceability of court orders.
During the divorce process, on the other hand, formal agreements are established regarding property, custody, and support, which are upheld and enforced by the court. Temporary orders can also be requested during the divorce proceedings to address immediate concerns until the final divorce decree is issued.
For separation, there are no residency requirements since there is no formal legal process.
On the other hand, to file for divorce in Texas, one spouse must have been a resident of the state for at least six months and a resident of the county where the divorce is filed for at least 90 days.
In an informal separation, couples may agree on dividing their property, but these arrangements do not have legal backing.
In a divorce, Texas follows the community property law, meaning most property acquired during the marriage is considered jointly owned and will be divided equally. However, separate property, which includes property acquired before marriage and gifts and inheritances, remains with the original owner.
During a separation, any arrangements made for child custody and support are informal and not legally enforceable. In a divorce, the court determines child custody based on the child's best interests. Child support is calculated using state guidelines, ensuring the child's financial needs are met.
The court will not enforce any formal arrangements for spousal support during a separation.
However, during a divorce, Texas law provides for limited spousal maintenance, which may be awarded under specific conditions, such as in long marriages or if one spouse cannot support themselves due to a disability or the need to care for a child with a disability.
Since there is no formal legal process for separation in Texas, consulting with an attorney is optional but can be beneficial for drafting informal agreements.
In contrast, obtaining legal representation is highly advisable during a divorce to navigate the complexities of the process and ensure that your rights and interests are protected. Divorce also has significant financial implications, requiring careful planning to manage the division of assets, debts, and tax consequences. Financial advisors or accountants can provide valuable assistance in managing post-divorce finances.
Of course, each couple's situation is unique. That being said, understanding each option's general pros and cons can be helpful when making a thoughtful decision.
There are several reasons why a couple might choose to get separated rather than immediately get divorced. Here are some of the potential benefits of going that route:
On the other hand, some of the drawbacks of include:
Whether or not a couple separates before they divorce, there are some reasons why this process might provide advantages over informal separation:
Divorce, of course, isn’t all sunshine and roses. Here are some of the drawbacks to the process that might drive some couples to try out separation first or even remain informally separated for some time before instituting divorce:
It’s never easy when you realize that your marriage might be ending. Separating first can sometimes be a good idea to give you and your partner some space to determine if you want to continue. On the other hand, the finality of divorce can help you move forward when you know that it’s time to change paths.
Are you looking for more resources to help guide you through Texas's complex world of family law? If so, check out the rest of our Texas Divorce Laws blog!
You’re probably familiar with the idea of a prenuptial agreement, but what is a post-marital agreement in Texas? Is this something that you and your spouse should consider, or is it not necessary in your situation?
In short, a post-marital agreement is a contract between spouses that is created and signed after the marriage has occurred. This legal document outlines property ownership and division, along with other important issues, in the event of divorce or death.
Not all couples will need a post-marital agreement, but those with significant assets, blended families, and frequent conflicts about finances, to name a few, can certainly benefit from this type of contract.
Let’s take a look at what you need to know about postmarital agreements in Texas to help you determine whether or not it’s something you and your spouse should pursue.
Also known as a postnuptial agreement or a postnup, a post-marital agreement is a legal document that married couples can create to determine ownership and property division in the case of a divorce or death.
You’ve probably heard the term “prenup,” which refers to a contract between a couple that is made prior to their marriage. A post-nup is very similar, except that the parties involved are already husband and wife when the document is created.
Are you wondering how assets and debts are typically split up in a Texas divorce? You can learn more about what to expect in our guide to Community Property Law in Texas.
A number of issues can be touched upon in a post-marital agreement, including:
It’s worth noting that a postnuptial agreement in Texas cannot make determinations about the following issues:
Both child custody and support are issues that, from the viewpoint of Texas courts, must be decided in a way that prioritizes the best interest of the children involved. This means that neither prenups nor postnups can outline how issues of child custody and support are handled.
Though a post-marital agreement might not sound like the most romantic endeavor you and your spouse could engage in, the truth is there are a number of benefits to creating this type of document.
When you create a post-nuptial agreement, it gives both spouses the chance to put in their two cents about how assets and debts will be divided in the case of divorce or death.
Furthermore, depending on how long into the marriage the document is created, it’s possible that they will both be more mature and more capable of coming to agreements that suit both of them.
Finances can be one of the biggest stressors in any relationship.
Without clear expectations about how you’ll deal with money as a couple, it’s much more likely that you and your spouse will deal with conflict surrounding your finances.
Getting a postnuptial agreement doesn’t necessarily mean that you and your spouse are planning on getting divorced. After all, this can also be a useful tool for estate planning and keeping wealth in your family in the long run.
However, postnups can also be very useful in making divorce much more seamless. When you and your spouse have already made decisions about the most important issues on the table long before tensions were high mid-divorce, it can mean you save money on legal costs and tons of time. Essentially, you can pursue an uncontested divorce rather than engaging in a contested divorce.
If either spouse or both spouses together own a business, a postnup can be a very useful document.
Not only can this document outline what happens to business assets and interests in the event of divorce, but it also can ensure that you have some control over what happens to your business after your death.
If you or your spouse has children from a previous marriage, a post-marital agreement can help make sure that these children’s interests aren’t lost in the shuffle in the case of divorce.
Beyond that, this type of document can serve to protect the interests of your beneficiaries when you and your spouse pass on.
Of course, there are always two sides to every coin. A postmarital agreement might not be necessary or the best idea in every situation. Let’s take a look at some of the reasons you might want to steer clear of creating this type of contract with your spouse.
One of the biggest reasons that people are skeptical of creating post-marital agreements is that it seems to imply that divorce is inevitable. After all, why would you go through all the trouble to decide how things will be split up if you’re planning on living happily ever after?
Well, the truth is, there are plenty of reasons.
At the same time, even the thought of signing a postnup could leave some individuals with hurt feelings. For this reason, it’s always a good idea to be thoughtful about how you broach the issue and explain to your spouse why you think it is beneficial for both of you.
In general, postnuptial agreements are enforceable so long as the contract wasn’t signed under duress or fraudulently. Furthermore, the agreement must not be considered unconscionable by the courts and can’t contain certain terms.
Additionally, some experts state that postnuptial agreements are actually scrutinized much more carefully than prenuptial agreements. The reason for this is that the contract is being created after the marriage has occurred, which potentially creates a scenario where both parties don’t have an equal place on the playing field. For instance, if one party has more assets or earns the lion’s share of the income, it can leave one spouse in an unequal bargaining position.
Of course, another potential issue with postmarital agreements has to do with actually reaching an agreement in the first place.
When you’re creating a post-marital agreement, you’re dealing with some of the most important issues in your life. Questions regarding your home, your property, your debts, your business, and so forth are all on the table.
If both individuals aren’t on the same page, an attempt to create a postnuptial agreement could actually create conflict and strife rather than help to avoid it.
Postnuptial agreements aren’t necessarily going to be the right choice for every couple. That being said, here are some of the factors that could potentially make you and your spouse good candidates for this type of document:
On the other hand, going to the trouble and expense of hiring a lawyer to create this type of document might not be worth it in the following circumstances:
In order for courts in Texas to see your post-marital agreement as valid, the following must be true:
You will typically want to work with a lawyer when drafting and signing a postnuptial agreement. Doing so will help ensure that you are creating an enforceable document that is considered valid in the state of Texas.
Only you and your spouse can decide whether a post-marital agreement is the right choice for your family. Postnuptial agreements are contracts between spouses that are created after the marriage has taken place and outline what will happen to your estate in the case of divorce or death.
Though this might not sound like the most romantic endeavor to undertake with your spouse, postnuptial agreements can be a useful financial tool when done correctly.
Are you looking for more information to help you navigate the world of family law in the Lone Star State? If so, check out our Texas Divorce Laws blog for more useful resources!
If your marriage is ending because of infidelity in your marriage, there are probably a lot of questions swimming around your head at the moment. One thing that you might be wondering is: is adultery a crime in Texas?
The short answer is: no.
Though this might seem strange, the reality is that infidelity isn’t a criminal offense in Texas. However, it can be taken into account in a civil case such as divorce.
Let’s take a closer look at what you need to know about adultery and divorce in Texas to help you get a better sense of what you can expect from the divorce process.
Before we get into the legality of adultery in Texas, let’s first make sure we’re clear on what exactly adultery is under Texas law. Culturally, people might think of things like having an emotional affair as a form of adultery, but the state of Texas very specifically designates what constitutes adultery.
An individual in Texas commits adultery if they have sexual intercourse with a person who isn’t their spouse while married. Texas law sees adultery as occurring when physical, sexual intercourse has taken place between a married person and someone who isn’t their husband or wife, rather than applying broader definitions of cheating.
How can you know if your spouse is really cheating or if you're just being paranoid? Check out our list of signs your spouse is having an affair.
No, adultery isn’t a crime in Texas. This means that someone who cheats on their spouse won’t be locked away or face criminal charges for their behavior.
At the same time, this doesn’t mean that adultery can’t have an impact on the outcomes of civil proceedings, such as a divorce. Essentially, just because a cheater won’t have handcuffs slapped on them for straying from the marital bed, it doesn’t mean they will get off scot-free without facing legal challenges.
In Texas, a person who is seeking a divorce will need to select a legally accepted reason that they are choosing to end their marriage. These are known as “grounds.” Individuals can either file for divorce based on no-fault grounds or on fault-based grounds.
It’s worth noting that the courts in Texas have found that adultery can be used as the grounds for divorce even when the infidelity occurred after the two spouses had separated from one another.
There are actually 20 states in the U.S. where adultery is defined as a crime. In most places, it’s treated as a misdemeanor. However, there are several states where infidelity is actually a felony.
Adultery is a misdemeanor in the following U.S. states:
In these four states, adultery is considered a felony:
Adultery was a crime in Massachusetts until 2018, up until which point it was considered a felony offense. This meant that, theoretically, at least, cheaters could be put in a state prison for up to three years, in jail for up to two years, and also be ordered to pay a fine of up to five hundred dollars.
If your spouse has committed adultery and you’re filing for divorce, there’s a good chance you’re wondering how this will affect the outcome when it comes to things like property division, alimony, and child custody.
One might assume that the courts will automatically be harsh toward anyone who has broken their marriage contract. However, it’s important to understand that infidelity may or may not affect important questions like how property is split up.
You have the option, when you live in Texas, to file for divorce on the grounds of adultery. This means, though, that the pressure is on you (and your attorney) to prove the claim that you’re making against your spouse. The judge might consider the behavior of your spouse when splitting property and making decisions about spousal support, but not necessarily.
Texas is one of a handful of community property states in the U.S. This doesn’t necessarily mean, however, that the estate will be split down the middle. The rule of thumb is that courts have to divide assets and debts in a way that is deemed “just and right.”
A spouse’s fault in splitting up a marriage– including adultery– can be taken into account when a fair but unequal division is being determined. Usually, though, other circumstances need to be present for the estate to be divided unequally. It’s also more likely that you will be awarded more in this type of situation if a lot of marital money was used toward your spouse’s affair.
Texas really only court orders spousal maintenance in a few specific circumstances. If you are hoping that you’ll be awarded substantial alimony by the court because of your spouse’s infidelity, you might be disappointed to learn that this might not be the case.
There are strict eligibility requirements for receiving spousal maintenance in Texas. Spousal support, on the other hand, can be agreed to within a divorce settlement agreement in a way that allows for a lot more leeway in terms of the amount of money you can receive and for how long.
Texas, just like every other state in the U.S., must make decisions about child custody based on what is in the best interest of the child. This typically means that adultery isn’t going to have an impact on the court’s ruling regarding parenting time and the primary residence of the child.
When it comes to child support, there is a formula used by the state of Texas to determine how much support is required.
This is based on a number of factors, including:
Child support payments are intended for the support of the child’s needs, not for the parents, and certainly not as a way to punish an individual that led to the dissolution of a marriage.
Let's say that you and your spouse have decided to go separate ways. One or both of you move out of the house, and the two of you start building your lives back up on your own.
At the same time, your divorce hasn't been finalized yet. There isn't such thing as legal separation in Texas, so you are still very much legally married in the eyes of the Texas courts.
You might assume that starting to date new people would be fine in this circumstance, but it's best to wait until the Final Divorce Decree is signed by a judge. Texas courts have found that a spouse can file for divorce on the fault-based grounds of adultery even if the affair didn't begin until after the couple separated.
This means that dating while your divorce is ongoing, even if you and your spouse are living separately, could impact the outcome of your divorce. Considering how impactful things like property division and spousal support can be on your post-divorce life, the safest thing to do is wait until the divorce is final to start dating.
Adultery might not be a crime in the state of Texas, but that doesn’t mean it can’t impact how everything pans out in your divorce.
If you or your spouse decides to file for divorce on the fault-based grounds of adultery, it’s possible that there could be an unequal division of property. Furthermore, it could potentially affect court-ordered spousal maintenance. Since child custody and child support are based on the needs of the children, adultery won't impact these rulings unless the infidelity has compromised the child's well-being.
At the same time, you shouldn’t necessarily assume that the court will rule in your favor in this regard. Judges are expected to create “fair and just” rulings in divorces. Adultery, on its own, may not be enough to award you more than half of the marital property. Additionally, spousal maintenance is only awarded in a few select circumstances in Texas.
If you’re getting divorced, one of the best things you can do is work to gain a deeper understanding of the process. The more you know, the better prepared you can be!
Are you searching for more resources to help you through your Texas divorce? If so, make sure you check out our Texas Divorce Laws blog!
You’ve probably heard that it’s easier in some states than others to be awarded alimony in a divorce. So, is Texas an alimony state? What should you expect in terms of paying or receiving alimony in relation to your divorce?
There are alimony laws on the books in all U.S. states, and Texas is no exception.
However, you and your spouse are also able to agree to voluntary spousal support in your divorce agreement or prenuptial agreement.
Let’s take a look at what you need to know about alimony in Texas.
Every U.S. state has its own laws regarding alimony, some of which are much more comprehensive than others. It’s, therefore important to understand the laws in your own state to gain a deeper understanding of whether you will be likely to receive or have to pay alimony.
It’s worth noting that the word “alimony” doesn’t appear in the Texas legal code– instead, the terms “spousal maintenance” and “spousal support” are used. In general, Texas is considered one of the most difficult states in which to be awarded alimony through the courts. Texas courts typically prefer that private contracts be used to create alimony agreements rather than having the court order such arrangements.
Under Texas law, “spousal maintenance” and “spousal support” are two separate concepts. Let’s take a closer look at what distinguishes these two terms.
Spousal maintenance, under Texas law, is payments made from one spouse to the other as ordered by a court. Both spouses have the right to request maintenance as a part of their divorce proceedings. In order to actually be awarded spousal maintenance, however, very specific qualifications must be met.
The only way a spouse will be awarded spousal maintenance is if they don’t have the resources they need to provide for their basic needs at the time of the divorce plus one of the following:
In Texas, the court's presumption from the get-go is that maintenance will not be necessary or appropriate. It then falls upon the requesting spouse to prove that they have, in good faith, tried to get the training or education they need to support themselves or have worked to earn enough income to be financially independent. At this point, the court will evaluate the maintenance needs of the spouse.
Some factors will be taken into account when determining whether one spouse should receive court-ordered spousal maintenance.
These include:
Courts will take into account any and all factors that they deem relevant when evaluating an individual for spousal maintenance.
Spousal maintenance can be awarded under three different standards in Texas.
Here’s the breakdown:
Also known as contractual alimony, spousal support results from a voluntary agreement made between both spouses. Rather than being ordered by the court, spousal support is something that is typically outlined in a divorce settlement or prenuptial agreement.
In this circumstance, spouses can agree to a certain amount of spousal support as well as the duration of the payments. If the court accepts the contract that is made between the two spouses, it is then enforceable in the same way that other contracts are in the State of Texas. This document will be included in the Final Decree of Divorce.
Regardless of whether you are worried that you will be ordered to pay alimony or you are hoping you will receive it, there are three key things you’ll want to understand about spousal support and maintenance in Texas.
To receive court-ordered spousal maintenance, very specific circumstances must be met. The most common way that an individual receives spousal maintenance in Texas is by fulfilling the qualification of having been married for ten years and not being able to meet basic needs.
I’ve outlined the criteria for being awarded spousal maintenance in the section above entitled “What Is Spousal Maintenance?” It’s important to understand that you are not necessarily going to be awarded spousal maintenance even if you meet the qualifications. Instead, meeting the qualifications is necessary for moving forward with an evaluation to see if spousal maintenance is necessary.
It is possible to receive spousal maintenance that is ordered by the court in Texas. However, the general preference of the courts is that these types of payments are agreed upon through a voluntary contract.
There are two contracts where alimony is typically agreed to as a part of a divorce:
In an ideal scenario, you and your spouse could come up with an arrangement that works for both of you. This refers to both the amount of money being given from one spouse to the other as well as the duration of these payments. If you are drafting a divorce settlement agreement, it’s advisable to work with a lawyer.
Spousal maintenance payments are, ultimately, more easily enforced than contractual spousal support.
The important point, however, is that the court only has this power in relation to payments that are below the statutory limits. Periodic payments above the statutory limits are not within the purview of the court in terms of holding a party in contempt.
It is possible for damages to be awarded in the case of contractual alimony. That being said, wage garnishment isn’t allowed as a part of collecting alimony. This means it’s possible you won’t get the money you are owed even if you go through all the right steps to have the contract enforced.
You can receive alimony in Texas, either in the form of court-ordered spousal maintenance or through a voluntary agreement between you and your spouse. Receiving spousal maintenance through the courts isn’t that easy in Texas, though, as you have to fit specific qualifications. In general, the courts prefer that payments made from one spouse to the other result from a voluntary contract between the two spouses.
Divorce is never easy, but you can make the whole process simpler by gaining a greater understanding of family law in your state. For more information about getting divorced in the Lone Star State, make sure you check out our Texas Divorce Laws blog!
Is your wife or husband having an affair in Texas? If so, you might be wondering what the heck to do next.
There are few things as disturbing and painful as realizing that your significant other has been unfaithful. If you choose to file for divorce, you’ll want to understand how infidelity can impact the outcome of your divorce.
In this article, we’ll take a close look at what you should do if your spouse is having an affair and what to expect from your divorce.
When you get divorced in Texas (and all other U.S. states, for that matter), you have to state the grounds for the divorce. You can understand “ground” to mean a legally accepted reason for dissolving the marriage.
In Texas, there are both fault-based and no-fault grounds for divorce. One of the fault-based grounds you can claim is adultery. This is an acceptable ground for divorce whether the adultery occurred before or after the two parties separated.
According to the courts in Texas, an individual has committed adultery if they voluntarily engage in sexual intercourse with someone other than their spouse. Individuals are even able to use adultery as the grounds for divorce if the spouses were already separated when the affair occurred.
This is one of the reasons it’s probably not a good idea to start dating before your divorce is finalized, even if you and your spouse aren’t living together.
Realizing that your spouse is cheating on you is one of the most difficult situations anyone could find themselves in. Of course, it’s important to take time to process your emotions and seek support from friends, family members, and potentially a professional therapist or counselor.
At the end of the day, everyone is going to handle a situation like this differently. You might find that it is possible to save your marriage through open and honest communication. On the other hand, you might discover that your spouse has been unfaithful for some time, and the breach of trust is more than you can deal with.
When you realize that your spouse has been cheating, it can be tempting to gather as much evidence as possible both because you want to know what happened personally but also in preparation for a divorce. It’s absolutely essential, though, that you don’t accidentally cross the line of what is legal in your attempts to prove the affair.
One of the best things you can do when you learn your spouse has been unfaithful is to learn as much as you can about the divorce process and seek professional (both legal and emotional) guidance.
If your spouse had an affair and you’re filing for divorce, it’s worth understanding the ways it can impact the major issues in any marriage dissolution. Let’s take a look at how adultery influences property division, spousal maintenance, and child custody and support.
In Texas, “alimony” is referred to as “spousal maintenance.” Spousal maintenance and support are only given out in limited situations.
Judges are only authorized to grant spousal maintenance when the spouse seeking support lacks sufficient property to meet their "minimum reasonable needs," provided that one of the following conditions is met:
Judges will only deliberate how much maintenance to award a spouse if they manage to meet these rather strict requirements. There are many factors that a judge has to take into consideration when determining how much maintenance to award, which can include either spouse having an affair.
So, basically, adultery could potentially have an impact on the amount and duration of spousal maintenance in Texas if you file for a fault-based divorce on the grounds of adultery and successfully prove that claim. At the same time, the requirements are so strict for receiving maintenance in the first place that many couples won’t be impacted by this. Furthermore, adultery is only one of the factors considered if one of you is eligible for spousal maintenance.
It’s worth noting that in addition to spousal maintenance in Texas, there is also a distinct term known as spousal support. This is a voluntary rather than court-ordered agreement that commonly appears in divorce settlements.
Texas is one of the few states in the U.S. that is a community property state rather than an equitable distribution state. That being said, your assets and debts won’t necessarily be split evenly down the middle. The rule of thumb is that judges are required to divide property in a way that is considered “just and right.”
A judge can consider a spouse’s fault in the dissolution of the marriage when dividing property unequally in a fault-based divorce. This means that adultery can be considered a factor when determining how to split up your property.
For example, it’s possible that a judge could give a smaller portion of a couple’s estate than would typically be considered fair if it were proven that they had an affair. Usually, though, there need to be other circumstances in addition to adultery to justify unequal property division.
The children’s best interests are the primary concern when determining child custody or support in a divorce. This is the case both in Texas and in all U.S. states.
In most cases, the adultery committed by a parent won’t impact child custody because it isn’t a given that the individual isn’t a good parent, even if they were unfaithful in their marriage.
As far as child support goes, there is a formula that is based on the income of the paying parent and the number of kids that require support. These child support guidelines are meant to ensure the child’s needs are met, so an affair or other negative behavior on the part of the parents won’t impact the outcome.
Filing for a fault-based divorce is often more expensive than filing for a no-fault divorce. Furthermore, it also tends to be a lengthier process. For this reason, many individuals choose to get a no-fault divorce even when they believe that their spouse’s behavior led to the marriage ending.
If you are going to file for divorce on the grounds of adultery, it’s important to understand that you will have to prove that claim. Circumstantial evidence can be used to prove your spouse had an affair, but it needs to be “clear and positive” rather than a simple suggestion or innuendo.
For example, the following could be used to prove adultery in a Texas divorce:
On the other end of things, if your spouse files for a fault-based divorce due to an affair they believe you’re having, you’ll have the opportunity to defend yourself from the accusation of adultery. This might mean denying the claims, or it could mean proving that your spouse condoned your behavior.
If your wife or husband is having an affair, the most important thing is to make sure that you’re taking care of yourself and your children both emotionally and physically. If you do choose to file for divorce, you’ll need to determine whether it’s worth the time and money to file for a fault-based divorce on the grounds of adultery. Working with a legal professional can help you understand the pros and cons of this option.
If you do choose to go this route, you’ll need to collect evidence that will help prove that your spouse actually committed adultery. At the same time, it’s essential that you don’t gather this information through illegal means. This means you can’t break into their cell phone or hack into their email, listen into their phone conversations, or otherwise break the law.
Ultimately, the best thing you can do when you realize your spouse is having an affair and you want a divorce is to learn as much as possible about the divorce process and how adultery can impact it. For more resources to help you in this capacity, make sure you check out our Texas Divorce Laws blog!
Divorce is a notoriously expensive process. So, who pays for a divorce in Texas? Should you expect to foot the bill yourself, or is there a chance your spouse will need to cover the cost?
In general, it is expected that each spouse will cover their own divorce costs. The spouse who files for divorce (known as the petitioner) is expected to pay the filing fee.
In some circumstances, though, a spouse might ask the judge to consider ordering the other spouse to cover some or all of their attorney's fees. A number of different factors are considered when this occurs, and a decision about who is paying for what isn't made until the final day of the divorce proceedings.
In this article, we'll take a closer look at how it is determined who will pay for divorce in Texas.
How much it costs to get divorced in Texas depends on a lot of different factors that have to do with your own particular circumstances. For a more complete breakdown of the cost of divorce in the Lone Star state, make sure you check out our guide to the cost of divorce in Texas.
According to studies that were conducted between 2015 and 2019, it costs between $11,000 and $13,000 to get a Texas divorce, on average. Another study states that the average for divorces without children is $15,600, while the average for divorces with children is $23,500.
Texas is one of the most expensive states in the country in terms of the costs of divorce.
There are a number of factors that will influence how much it costs to get divorced, including:
If you and your spouse have no assets and no debt, are divorcing amicably, and feel confident in your abilities to forge forward without a lawyer, the divorce itself really only has to cost a few hundred dollars-- the most substantial cost is going to be the filing fee.
For situations that are more complex, though, it's generally advised to get a lawyer. Involving an attorney significantly increases the cost of divorce, but most people feel it is worth it, considering that their post-divorce financial situation is on the line. Furthermore, reaching a settlement without having to duke it out in court is much less expensive than engaging in the litigation process.
In general, each party in a Texas divorce is typically responsible for their own lawyer's fees. On top of that, the person who first filed for divorce is the only one who generally pays the filing fee.
That being said, this isn't always how things play out. Since Texas is a community property state, one spouse could potentially argue that the cost of the divorce should be equally divided between the two parties.
In Texas, the assumption is that each party will pay for their own legal fees. However, clients can petition for an order to be made stating that their spouse will cover their legal fees.
A judge could order one spouse to cover the attorney's fees of the other spouse if they have significantly more financial resources. The idea here is that a wage disparity should not get in the way of either spouse's right to quality legal representation.
The judge, at the end of the day, has the final say regarding who pays for the attorney fees associated with the divorce in Texas. They will take a close look at the finances of both spouses as well as their ability to generate income when making this decision.
A judge may decide that an individual who earns quite a bit more than their spouse should pay some or all of their spouse's attorney fees under the implication that this is just and right.
There are other factors beyond finances that can drive a judge to order one spouse to cover their spouse's fees. For instance, if one spouse has been found to be hiding assets or is refusing to comply with discovery requests, a judge might order them to foot the bill for their spouse in addition to themselves.
Here are some of the reasons that a client might petition for an order that states their spouse will be responsible for their attorney's fees:
If your marriage is ending because your spouse was unfaithful, you might wonder if this is immediate cause for them to cover your attorney's fees. This is, however, not the case. Adultery on its own isn't enough reason for a judge to order the offending spouse to pay for their spouse's legal fees.
An individual can request temporary fees under the Motion of Interim Attorney Fees if they are unable to pay their attorney's fees during the divorce process.
Whether or not the spouse is granted, is up to a judge. A number of factors will be considered when looking at the financial status of both spouses, including:
A judge might request that one spouse has to cover the other spouse's costs based on this and other information. Some spouses might be ordered to pay their spouse's attorney the same amount they are paying their own, or they might be ordered to make a flat payment.
Though you might be eager to figure out whether your spouse is going to cover your attorney's fees, this issue isn't settled until the last day of your divorce proceedings. Both parties have to be able to show the costs that they have incurred as a part of the divorce.
Divorce is a complex and overwhelming process, no matter how amicable your split is with your spouse. If you are concerned about the cost of divorce in Texas, you might be wondering if your spouse will be ordered by a judge to pay for your attorney's fees. Though it is generally assumed that each party will cover their own costs as a part of divorce in Texas, it is possible that a judge would find it fair and just for your spouse to pay some or all of your legal fees.
If you're getting divorced in Texas, familiarizing yourself with the process can help put your mind at ease. Sometimes, we just need to know what to expect in order to better handle such a difficult and complex process.
Are you searching for resources to help you learn more as you get ready for divorce? Make sure you check out our Texas Divorce Laws blog for more articles, guides, and information.
There are two primary concerns in most Lone Star divorces. The first has to do with children and child custody issues, while the other is related to how property is divided. If your marriage is breaking up, it's perfectly reasonable to wonder how to protect your assets from divorce in Texas.
The division of property is a bit different in Texas divorces than in other states. The reason for this is that Texas is a community property state, along with only twelve other U.S. states.
If you have a substantial estate and are motivated to protect your assets during the divorce process, you're probably going to want to work with an attorney rather than get a DIY divorce. Even if you don't have ill intent in your efforts to protect your property, acting without the advice of experienced legal counsel puts you at risk of appearing to hide assets.
Let's take a look at what you need to know about pursuing a fair division of property in a Texas divorce.
Most states in the United States are known as equitable distribution states, but Texas is not one of them. Along with twelve other U.S. states, Texas is considered a community property state.
What does this mean? How does this impact the division of assets in your divorce?
The truth is, this is a very significant factor in how property is split up when two people are dissolving their marriage. While estates can get pretty complicated, the short story is that all of the property that you and your spouse own at the time you're getting divorced is assumed to be the property of both parties.
This can be very surprising to people in a day and age when it's increasingly common for spouses to maintain separate financial accounts and make purchases separate from one another. It doesn't matter if you used your income to pay for the home you live in with your spouse, for example-- in the eyes of the law, the home is marital property regardless.
All of the earnings and property of both people in a marriage in Texas that were acquired during the marriage are considered community property.
It doesn't matter at all whose name is on the title or account, whose income paid for an asset, or who took on responsibility for maintaining an asset. If the asset was acquired between your wedding day and the day of your divorce, it's considered community property, except for a few exceptions.
What are those exceptions? An asset acquired during a marriage isn't necessarily considered community property if it was:
Here are some examples of what might be considered community property in a Texas divorce:
The presumption in Texas is that any property acquired during a marriage is a part of the marital estate and, therefore, community property. However, spouses can agree (or, alternatively, one spouse can successfully prove) that a piece of property is the separate property of one spouse.
Separate property is:
Here are some examples of what could constitute separate property in Texas:
If you feel like you are in the clear because you bought your home or car before you got married and therefore they remain your separate property, you'll want to also know about the concept of reimbursement.
For example, let's say that you were using community funds during the marriage to pay for your mortgage or auto loan. In this circumstance, your spouse could ask for reimbursement. The idea is that marital funds were used to pay for separate property, and your spouse, therefore, has the right to ask to be repaid their share of what was spent from the community pot.
Some divorcing couples have little to no assets or debts and no children in the marriage. In these cases, spouses can save a lot of money during the divorce process by filing for a DIY divorce.
However, as soon as there are children involved or any amount of property or debts, it typically makes sense to involve an experienced divorce lawyer.
If you're concerned that you're going to lose your assets during a divorce, the first thing you'll want to do is find the right attorney. Though it might be tempting to try and move community assets around in order to protect them as a part of a divorce, this type of activity is not worth the risks.
For example, some people might try to lend assets to a friend if they smell a divorce coming on or otherwise disburse joint assets to try and keep them out of divorce proceedings. The reality is that there are severe penalties if you are caught hiding assets as a part of a divorce. If you think that your spouse is hiding assets, you'll want to talk to a lawyer about how they can be held accountable and whether you should have a temporary order filed to try and reduce the occurrence of this type of behavior.
Even if your assets are technically considered community property, it isn't uncommon for one spouse to make the bulk of the money in a marriage or control most of the assets.
If this describes your situation, it's natural to be concerned that you're going to lose everything you've worked so hard for.
The good news is that this type of nightmare scenario isn't actually what happens in Texas divorces. The courts are motivated to create a fair outcome and are notably not eager to give a spouse a "free ride" in terms of practically unlimited spousal support or receiving the bulk of the assets. As an example, Texas is one of the most difficult states in the country for spouses to receive alimony.
The courts in Texas aren't trying to pick sides or punish one party by stripping them of their assets. The Texas Family Code is written in a way that attempts to create fair outcomes and prevent lopsided outcomes.
Individuals with substantial estates are most certainly going to work with an attorney leading up to a divorce.
Once there is a considerable amount of money at play, things start to get a lot more complicated. Unless you are a divorce lawyer yourself, it is highly recommended to work with experienced attorneys who will look at your specific financial situation and come up with a plan that best serves your post-divorce goals.
When you realize that you're getting a divorce in Texas, probably your first concern is who is going to get the kids (if you have them.) After that, you're next thought is most likely about what's going to happen to your assets.
Since Texas is a community property state and there are severe penalties for hiding assets during a divorce, the best thing you can do is to work with an experienced lawyer.
If you're interested in learning more about divorce in Texas, make sure you check out our Texas Divorce Laws blog!
According to the U.S. Census Bureau, most Americans that get divorced will get remarried within five years. How soon is too soon, though? How long after divorce can you remarry in Texas?
Most states don’t have a waiting period before remarriage after divorce, but Texas is an exception. You must allow thirty days between the finalization of your divorce and entering a new marriage to ensure that both spouses have a full thirty days to appeal the terms of the divorce after the decree has been signed by a judge.
In most states in the US, you have the option to enter a new marriage immediately after your divorce. In eight states and Washington D.C., however, there is a mandatory waiting period that mandates individuals wait a certain period of time before getting remarried after a divorce.
Texas is one of the states with a mandatory waiting period. You must wait 30 days after your divorce is finalized before you can enter a new marriage.
The other states (and D.C.) with mandatory waiting periods for remarriage after divorce are:
In Texas, along with most of the other states where there is a mandatory waiting period, the amount of time required between divorce and remarriage aligns with the appeal period for couples to fight their divorce.
In some states, your marriage isn’t technically finalized, and divorce decrees aren’t issued until the waiting period is over. This means that couples in these places are still legally married until the waiting period has reached its completion.
This isn’t true of Texas, though. In Texas, your divorce is finalized when the judge signs the divorce decree. That being said, you still can’t legally get remarried until thirty days have passed. There are a few exceptions to the rule, which we’ll explore later in the article.
The parties involved in a Texas divorce suit have thirty days to file an appeal after a divorce has been finalized. The waiting period exists to ensure that both spouses have the option to appeal the terms of the divorce agreement. When thirty days come and go after a divorce, both spouses can know with certainty that the divorce terms aren’t going to change, and they can move forward with a new marriage if they so choose.
It’s worth noting that there is also a sixty-day waiting period between when you file for divorce and when a judge can finalize your divorce. On top of that, there is a 72-hour waiting period after getting a marriage license before you can legally marry in Texas. This means that there is at least a 93-day period between filing for divorce and getting remarried to a new spouse.
You can find more information about the typical timeline of divorce in the Lone Star State in our guide to how long a divorce takes in Texas.
There are two exceptions to the mandatory waiting period after divorce before getting remarried:
In the next section, we’ll look at some of the reasons why a judge might choose to waive the waiting period. If you’re wondering whether it’s ok to start dating again before you have your final divorce decree in hand, take a look at our article about what to watch out for when dating before divorce is final in Texas.
It is possible to have your thirty-day waiting period waived. You can do this by filing a motion with the judge, and this motion can be filed without the agreement of your former spouse.
However, a judge will only grant such a waiver for “good cause.” There are a number of circumstances that can qualify as good cause, including:
The decision of whether or not to waive the mandatory waiting period is ultimately up to the judge. If you feel you should be able to remarry before the thirty-day period is over, you might consider hiring a family law attorney to help you make a strong case for the waiver.
If you are getting divorced without a lawyer, make sure you read our guide to pro se divorce in Texas. For ideas about how to keep costs down during divorce, take a look at these cheap divorce options in Texas.
Though it can be frustrating to realize that you are barred from getting remarried right away after your divorce, it is a good idea to respect the thirty-day waiting period.
If you get married to a different person before the waiting period is over and you don’t receive a waiver from the judge, your new marriage is considered “voidable.” For a period of time, your marriage could be challenged.
Getting remarried before the end of the waiting period also gives a disgruntled ex-spouse an opportunity to challenge your new marriage or otherwise create legal drama. It is simply easier to wait thirty days before entering a new marriage so that you don’t end up back in court with your new marriage found to be void.
Getting remarried can have an impact on the terms of your divorce in some instances.
If there are any material changes in your assets during the thirty-day waiting period after divorce, your ex-spouse can question whether this new property was actually owned while the marriage was still legally binding. This is one of the reasons it is so important to wait thirty days after divorce before getting remarried.
Similarly, it’s generally a good idea to wait to remarry until your ex has complied with all of the property division agreement terms and transferred all of the property that is now rightfully yours.
Getting remarried won’t have an impact on the custody rights of a parent unless the remarriage is found to not be in the best interest of the child. For instance, a judge could alter the custody arrangement if one of the parent’s new spouses is found to be abusive.
Getting remarried after a divorce typically means that you will no longer be able to receive spousal support. These payments from one spouse to another after divorce don’t intend to support the spouse receiving the money indefinitely– instead, they intend to help the recipient make ends meet until they can get the education or training necessary to support themselves.
Unless you’ve received a waiver from the judge to enter a new marriage or you are remarrying the spouse you just divorced, it is best to abide by the mandatory thirty-day waiting period outlined under Texas Family Law. Otherwise, you are leaving yourself vulnerable to legal trouble and the potential for your new marriage to be voided.
Getting divorced is a stressful life experience for anyone, but learning about your rights and responsibilities under Texas Family Law can help make the whole process go much more smoothly. For more information about divorce, marriage, and more, check out our Texas family law blog.
When you tell your friends and family that you’re getting divorced, you likely receive tons of advice about how to create the best possible post-divorce outcome. One of the things that might come up is the “10-year rule,” which can actually refer to several different concepts.
On the one hand, they might be talking about the fact that you might be entitled to Social Security benefits through your spouse. On the other, they might be referring to laws in specific states (such as California) where there are special alimony laws for marriages that last at least ten years.
It’s important to understand that there is a lot of myth surrounding this latter idea and that laws about spousal maintenance and support vary widely by state.
Frequently, when people talk about the 10-year milestone in a marriage in regard to divorce, they are referencing the laws surrounding Social Security.
If you are divorced after having been married for ten years or more, you are typically able to receive benefits through your ex-spouse if the following are true:
This is the case even if your ex-spouse has married another person again.
The benefits that you are entitled to receive are not negotiated or changed as a part of the divorce proceedings.
All this being said, it’s important to talk with a lawyer in the state that you are getting divorced in, as the ten-year mark can also impact other aspects of your divorce. An attorney that is licensed to practice in your state will be able to give you advice that is specific to your state.
There is also an often-referenced concept of the “10-year rule” in California in particular, but it’s important to understand that there is a lot of incorrect information floating around the internet about this notion.
Many people mistakenly believe that you are guaranteed alimony for life if your marriage lasted for at least ten years, according to California divorce law.
However, this isn’t the case. The confusion stems from the fact that courts cannot set a termination date for alimony for marriages of long duration (i.e., of ten years or longer.) With shorter-term marriages, the general presumption is that support should last for “one-half the length of the marriage.”
Even if you were married for more than ten years and got divorced in California, the courts can modify spousal support when there is a substantial change of circumstance unless the parties have created a prior agreement regarding a specific termination date. Alimony can also end when the recipient enters into a registered domestic partnership or remarries or when either party passes away.
In addition to the laws surrounding Social Security benefits, you might find that what you are entitled to in a divorce after ten years of marriage is different than those you can receive if your marriage didn’t last at least ten years. The laws in each state are different, so it’s important to research the family law in your state or speak with an attorney that is licensed to practice in your state.
If you and your spouse signed a prenup before the wedding, you might have worked out terms regarding alimony in this document. You’ll want to take a look at the details of your prenuptial agreement if you are preparing for divorce to help you understand what the support arrangement will be.
Important note: While you can memorialize a binding agreement in regards to alimony in your prenup, you cannot use a prenup to limit the amount of child support one spouse will owe or determine child custody in advance. The reason for this is that the right to child support doesn’t belong to the parents but instead to the child and child custody decisions are based on what is in the best interest of the child.
If you are getting divorced in Texas, it’s important to understand that being awarded court-ordered spousal maintenance is in no way a certainty, even if you've been married for a long time. Texas is considered one of the most difficult states to receive spousal maintenance through the courts, and they decide who is awarded this type of support on a case-by-case basis.
Texas law approaches spousal maintenance from the standpoint of necessity– basically, they don’t favor awarding maintenance by any means. Spousal maintenance is something that is only court-ordered when the court believes that the recipient of support needs the additional financial support to get themselves to a point of financial independence (or is unable to support themselves for a number of specific reasons.)
There are four primary ways through which an individual can be awarded maintenance by the courts, one of which is:
The other three basic ways are:
In this final instance, the spouse that is a sponsored immigrant has to ask the court to order their spouse to provide them with 125% of the U.S. Federal Poverty Guidelines until they become an American citizen or they have reached forty credits through their work history.
As you can see, you should not expect that you will automatically be awarded court-ordered spousal support just because you have been married for ten years or longer.
How long the marriage lasted does have an impact on how long spousal maintenance payments are made if they are awarded in a divorce case:
There are a number of reasons why these payments can end early in Texas, which are:
If you believe you should receive alimony or spousal support as a part of your divorce, you’ll be glad to know that receiving court-ordered spousal maintenance isn’t the only way to be paid alimony. Spousal support can also be one of the terms negotiated during your divorce settlement. If the two of you are able to agree, you can set up whatever arrangement you are both comfortable with so long as the court believes it to be fair and just.
Getting divorced after having been married for a long time is one of the most difficult things anyone can do. If you have been married for nine years and are considering getting divorced, the people around you might encourage you to hang on for a little longer in order to receive the benefits of the 10-year rule. While they might not be wrong in regards to the potential to receive Social Security benefits via your spouse, it’s important to understand all of the details before making such a big decision.
The best thing you can do is probably to seek the counsel of an experienced attorney that is licensed to practice in your state. Since state laws vary greatly surrounding spousal support and alimony, they will be able to help you understand what your options are and what it means to get divorced before or after the ten-year mark. If you are considering representing yourself in your divorce, it can still be very useful to have a conversation with an attorney to help you structure your approach.
Are you busy reading up on Texas family law to prepare for your divorce? Be sure to check out the rest of our Texas divorce laws blog.
Every year, hundreds of thousands of marriages are damaged in the U.S. by infidelity. If you or your spouse cheated and are now discussing divorce, you might be wondering about adultery in a Texas divorce and how it affects child custody and alimony.
Under Texas law, adultery can impact the decision a court makes about financial issues such as property division and spousal support. However, judges aren’t usually permitted to consider the adultery of a parent when deciding about child custody and visitation.
Let’s take a look at what you need to know about divorce in Texas when adultery is involved.
Adultery is one of the fault-based grounds for divorce under Texas Family Code 6.003.
An act of adultery is committed if a married person has voluntary sexual intercourse with another party that isn’t their spouse. However, in order for a Texas court to recognize adultery, it must be proven by the other spouse.
Child custody issues in Texas are divided into two different categories. These are:
Conservatorship covers the duties and rights of parents to make decisions about their children, such as medical decisions, educational decisions, and psychiatric decisions. One person might be allowed to make all the decisions, which is known as Sole Managing Conservatorship, or both parents might jointly have the right to make these decisions, which is known as Joint Managing Conservatorship.
Texas courts are interested in what is in the best interest of the children when it comes to these issues.
Possession and access cover when parents can visit with their children or when they have physical custody. The two statutory schedules for possession and access are:
These schedules outline how parenting is split between two parents. That being said, courts can award a different schedule if they believe it is in the best interest of the child. The involved parties can also agree on a possession and access schedule that fits with their needs so long as it is still in the best interest of the children.
If you're concerned about child custody, you are probably also interested in learning more about child support. This article covers how child support is calculated in Texas.
In Texas, court-ordered payments from one spouse to the other after the divorce is final is known as spousal maintenance. Couples can also agree to alimony arrangements as a part of their divorce settlement, which is known as contractual alimony.
In some cases, courts might award temporary spousal support as a temporary order. This might occur in order to help the couple maintain the status quo while a divorce is pending.
In a recent post, we covered the topic of spousal support in Texas at great length. In short, though, it's important to understand that it is very difficult to be awarded spousal maintenance by Texas courts. Even if you do win spousal maintenance as a part of a divorce, there are limits to the percentage of a person's monthly resources that can be allotted toward spousal support.
In short, though, Texas law doesn't provide for alimony as a right, nor is it prohibited. An individual has to meet specific qualifications in order for a court to be allowed to order spousal maintenance payments. The most common way for people to receive this type of support through a court order is by being married for more than ten years and being able to prove that they won't be able to meet their basic needs independently.
There are also parameters set on the duration of court-ordered spousal support payments in Texas. These timeframes range from five to ten years. Spousal maintenance payments are commonly paid monthly.
If you have learned that your spouse was cheating on you and you're filing for divorce, it can be tempting to try and make the process as painful as possible for them and bring the case in front of a court with the hopes of winning big. It doesn't typically work this way, though, and you will likely be disappointed if you expect to be awarded massive amounts of spousal support or a lion's share of the property.
Curious to know how much to budget for your divorce? Learn how much divorce costs in Texas here.
Are you considering filing for divorce based on the grounds of adultery? If so, you’ll want to understand that the court will require you to prove that the affair occurred.
This means that it isn’t enough for you to simply state that your spouse cheated on you. You will need to provide evidence that supports and proves the claims you are making.
Unfortunately, adultery can be very difficult to prove because it is secretive by its very nature. You don’t need to prove that your spouse actually had sexual intercourse with another person as long as you can provide enough circumstantial evidence that points towards the existence of the affair.
Some of the types of evidence you can produce to show that your spouse was most likely involved in an adulterous affair include:
The evidence you provide will need to make it reasonably clear that your spouse was committing adultery during your marriage. Some individuals might enlist the help of a private investigator in order to get the evidence they need to prove adultery to the court.
All that being said, it's a good idea to talk to your lawyer about how adultery could impact your individual case. You might find that it makes sense to file a no-fault divorce even though you feel that your spouse is responsible for your relationship ending.
When a divorce goes to trial, the whole process can get very complicated and expensive. The more evidence that each side of the case is introducing, the longer you can expect it will take for a ruling to be made by the court.
(Check out this post if you're wondering how long a divorce takes in Texas.)
If you are choosing to represent yourself in your Texas divorce, (which, for the record, you have every right to do,) you’ll need to get very familiar with the Texas rules of evidence. These are guidelines that let you know what types of evidence can be brought in front of a judge. Representing yourself in a contested, fault-based divorce is not an easy feat, and you should think seriously about whether or not you’re up for the task. You might find that hiring a divorce attorney is well worth the cost.
Are you considering getting divorced without the help of an attorney? Make sure you read this post about how to file for divorce in Texas without a lawyer.
In most cases, the child custody arrangement that results from your divorce will not be impacted by a spouse’s adulterous behavior. Usually, there needs to be a compelling correlation in order for the child custody arrangements to be affected by adultery.
The assumption here is that behavior that makes a person a bad spouse doesn’t necessarily make them a bad parent. On top of that, Texas family law always starts from the perspective of trying to provide the best possible outcome for the children involved and protecting their best interests.
That being said, judges might not look kindly at spouses that start dating before a divorce is final– particularly if there are minor children in your family. The spouse that was cheated on could argue that person who is in a new relationship is disregarding the way their actions impact the children. Additionally, they could argue that they are acting irresponsibly in relation to their parental responsibilities.
For instance, let’s say that you start dating someone before your divorce is final and they spend the night in a home where your children also live. Your spouse could argue that this negatively impacts your kids and that your behavior is inappropriate.
Another example is if a cheating spouse exchanged inappropriate photographs with their lover on a device that was accessible by their children. A court could take this into consideration when deciding about issues of custody and visitation.
Your custody award could be impacted by this type of circumstance. Just so you know, child custody is known as conservatorship in Texas. How much time you are allowed to spend with your kids could be reduced if the judge believes your behavior is irresponsible or inappropriate in relation to your kids and impacts them negatively.
While Texas law doesn’t use the word “alimony,” there are several different types of spousal support that can emerge from a Texas divorce.
The first is spousal maintenance, which courts award in certain circumstances based on very specific guidelines. Texas is considered one of the most difficult states in which to receive court-ordered spousal support, and there are limits to how much money one spouse can be ordered to pay to the other as well as the duration of these payments.
The second is temporary spousal support, which is a temporary order made by courts that only last during the divorce proceedings (and sometimes for a brief period after the divorce is final.)
The third is contractual alimony. This isn’t a court order and instead is an agreement worked out between you and your spouse (and your lawyers if you have them.) This type of agreement is usually a part of the divorce settlement.
When it comes to spousal maintenance, courts will take a look at the behavior and actions of both spouses in the marriage as a part of their decision. If one spouse committed adultery, the court might determine that they shouldn’t receive spousal maintenance even if they fit the requirements for this type of support under Texas law.
Contractual alimony, on the other hand, isn’t decided by a judge and instead results from an agreement between both parties. However, a spouse that is fighting for alimony payments that also committed adultery isn’t in a great bargaining position.
Texas is a community property state that will split your property according to a division that is thought to be “just and right.” This means that the norm isn’t necessarily to split marital property precisely 50/50.
If you are able to prove that your spouse cheated on you during your marriage, you have the right to ask the court to award you a disproportionate amount of the property you and your spouse share. On the other hand, if the court is convinced by your spouse that you committed adultery, the shared property could end up getting split in a way that doesn’t favor you.
If either you or your spouse committed adultery, you shouldn’t assume that the property division will necessarily lean heavily in favor of the wronged spouse. There are a lot of different factors that can influence how adultery impacts property division, including:
If it is found that a spouse was using marital funds as a part of their adulterous behavior, then adultery can particularly impact the division of marital property. For example, a spouse might use shared funds to pay for gifts, dinners, or hotel rooms as a part of their affair.
A court can order the adulterous spouse to pay back any of the resources that they spent on the affair before the divorce was final, even if the community property division isn’t affected by the acts of adultery.
Judges tend to have a lot of discretion when it comes to this particular matter. This means the outcome you can expect isn’t set in stone. That being said, adultery isn’t something that reflects well upon a party in a divorce proceeding.
Of course, this is only applicable if your case goes all the way to trial. If you are able to settle your case during mediation or otherwise before the case goes to trial, the offending spouse isn’t in a great position when it comes to negotiating power.
There are likely a lot of questions running through your head if you are dealing with both the realization of adultery in your marriage and the notion that you're getting divorced. Let's look at some of the frequently asked questions about adultery and divorce in Texas that haven't already been covered in this article.
The state of Texas doesn’t recognize legal separation the way that some other U.S. states do. No matter how separated you and your spouse are in practice, you are technically married until the final divorce decree is issued by a judge.
This means that Texas courts will consider acts of sexual intercourse with parties outside the marriage to be adultery, even if you and your spouse have agreed to live separately and end your relationship. For this reason, it is important to wait to start dating until your divorce is final so it doesn’t have a negative impact on the outcome you receive.
It isn’t illegal to commit adultery in Texas. There are 21 states in the U.S. where adultery is technically a misdemeanor offense, but Texas isn't one of them.
That being said, any type of marital misconduct, adultery included, can be considered by Texas courts when deciding about property division and spousal support.
If you are filing for divorce on the ground of adultery, you will need to prove the adulterous behavior to the court. Of course, this can be very difficult because infidelity is secretive in nature. While you can use either circumstantial or direct evidence to prove that your spouse cheated, the proof does need to be clear and positive.
This means that it won’t be enough to provide evidence of innuendo or suggestion. You will need photos, texts, emails, social media messages, bank statements, or other evidence to show the court that a relationship exists (or once existed) between your spouse and another party.
Even if your spouse committed adultery, you might choose to file for a no-fault divorce. The reason for this is that fault-based divorces are inherently more complicated, more expensive, and more time-consuming. As you might imagine, this can also make them a lot more stressful to deal with.
When you file for a fault-based divorce, you are claiming that the other party is at fault for the marriage breaking up. You will then have to present evidence to prove that your spouse committed adultery.
If you file for a no-fault divorce, on the other hand, you don't have to prove that your spouse is at fault in any way. Instead, the two of you can move forward in the process without fighting over who is to blame.
In some instances, adultery can still impact the decisions of the court in a no-fault case. For example, a judge will take into account the marital misconduct of either spouse when determining whether spousal support payments will be ordered.
You are free to do what you want, but it can impact your case and outcome negatively. It is generally advised to wait to start dating until your divorce has been finalized. Since Texas doesn’t recognize legal separation, you are considered married until the final divorce decree has been issued.
Realizing that you probably shouldn't date before your divorce is final can be incredibly frustrating. After all, moving on with your life is a necessary part of dealing with divorce. However, starting a new relationship could jeopardize your ability to receive an outcome you are happy with during your divorce.
You can learn more about dating before divorce is final in Texas here.
The decision to end your marriage is never an easy one. If adultery is involved in your marriage, it can make an incredibly difficult situation even harder to bear.
Understanding how adultery impacts the divorce process is essential regardless of whether you are the offending spouse or not.
If you are going to file for a divorce on the grounds of adultery, you will most likely want to enlist the help of a lawyer. Divorce is complicated enough as it is when you aren't filing on fault-based grounds, and an experienced divorce attorney will be able to help you determine whether you have sufficient proof regarding your spouse's affair.
No matter where you are in the divorce process, learning as much as you can about Texas divorce and family law can make a big difference in your stress and comfort levels with the process. After all, we are often most afraid of what we don't understand. When you familiarize yourself with what to expect in divorce, it can take a lot of weight off of your shoulders.
If you're getting divorced in Texas, be sure to check out our library of resources at TexasDivorceLaws.org.
