Approximately 25% of married men and 15% of married women report they’ve had an extramarital affair.1 Americans reportedly believe that having an affair is morally worse than suicide, polygamy, and abortion, so it makes sense that adultery can lead to divorce.2 While statistics on the link between infidelity and divorce are difficult to find, family lawyers report that adultery is a contributing factor in many divorce cases. Infidelity often affects the divorce process – as well as the results of trial or settlement negotiations.
Effect on Division of Assets
In Texas, any married person can file for divorce under “no fault grounds,” which is sometimes referred to as divorce based on “irreconcilable differences.” Most divorces are filed and eventually granted on no fault grounds, but a spouse can also file for divorce alleging adultery. “Adultery” means sexual activity with someone other than one’s spouse, so although “emotional affairs” can precipitate a divorce, an emotional affair may not be considered “adultery” under the law. When adultery can be proven, a court can take it into consideration when dividing the community estate. It is therefore not uncommon for a cheating spouse to walk away with less than half of the community estate.
For a divorce to be granted on the grounds of adultery, the non-cheating spouse and his or her lawyer must prove the adultery through evidence such as witness testimony, social media correspondence, credit card statements, and emails. Compiling evidence to prove adultery may require hiring private investigators and/or electronic data experts, especially considering the popularity of online dating websites and electronic messaging. Depending on the circumstances, depositions might also be needed, including depositions of the cheating spouse’s affair partner. The discovery required to prove adultery can increase the cost of litigation and slow the divorce process down.
Given the time and expense often associated with proving adultery in court, many people choose to file for divorce on no fault grounds. However, even in those instances, infidelity is likely to change both the timeframe and expense associated with the divorce. The non-cheating spouse is often hurt and angry, so it can take time for him or her to be ready to negotiate a settlement. Psychic pain and anger also sometimes translate into additional and more expensive discovery and additional motions being filed with the court because heightened emotions create conflict over child custody and property that might not otherwise exist.
Adultery and Impact on Child Custody
In instances where infidelity impacts the children, courts can consider the adultery in creating a child custody plan. For example, if a cheating spouse spends the night with his or her affair partner when the children are present or leaves explicit text messages with his or her affair partner accessible to the children, a court might take such behavior into account when determining who will be the “primary” custodial parent.
Even when adultery does not change child custody orders, it can dramatically affect parent-child relationships and the parties’ ability to co-parent even after the divorce is granted. The psychic pain and anger often experienced by the non-adulterous spouse can make effective communication between parents difficult, if not impossible. Especially with older children, it is not uncommon for the children to harbor anger and resentment toward the adulterous spouse for “causing” the dissolution of the family unit. While these issues can be addressed with proper therapeutic interventions, they certainly make divorce more difficult for everyone involved.
Adequate proof of adultery is a powerful tool in the arsenal of divorce. For the adulterous spouse, it can substantially affect the child-parent relationship, detrimentally alter the division of marital assets, dramatically increase the cost of the divorce, and profoundly impact family relationships even after the divorce is granted. When adultery is an issue in a divorce proceeding, it is even more important for both spouses to retain counsel.
1. Jane E. Brody, When a Partner Cheats, The New York Times, Jan. 22, 2018; Wendy Wang, Who Cheats More? The Demographics of Infidelity in America, Institute for Family Studies, Jan. 10, 2018.
2. Eleanor Barkhorn, Cheating on Your Spouse is Bad; Divorcing Your Spouse is Not, The Atlantic, May 23, 2013.