May 2019

People often ask whether infidelity even matters anymore in divorces. Different jurisdictions deal with it differently. In Texas, the issue is even treated differently in different localities. Historically, Texas case law indicates infidelity is one of many different factors that can support
a disproportionate division (more than half) of community property in favor of the innocent spouse. However, the reality is that when the issue is unconnected to expenditure of money or exposure to children, infidelity – by itself – has a tenuous relationship to a larger portion of community property.

Parties contemplating divorce need to know that some judges still view the issue as a strong reason to support a disproportionate division, while others merely view it as a symptom of a bad marriage rather than a cause. Judges in this latter category will be reluctant to “punish” a party for something they view as a human limitation rather than blameworthy conduct.

As noted above, there are certain contexts where infidelity is commonly viewed by the courts in a clearly negative light. The first of these is when a spouse uses or expends community resources to pursue the extra-marital relationship. During marriage, spouses owe one another a fiduciary duty to safeguard community property for legitimate purposes. This duty is similar to a duty a bank owes a customer or a trustee owes a beneficiary. The breach of that duty by a spouse’s improper use of community property gives rise to a claim of constructive fraud upon the community estate. Once the fact of infidelity is established, the spouse engaged in the conduct has a duty to demonstrate the fairness of all expenditures of community property. In short, the innocent spouse in this scenario can achieve a disproportionate division of community property by establishing that all money used to pursue infidelity has already been received by the spouse engaged in the affair. Often, that money is already spent and gone, but the court will nonetheless view it as part of the award to the spouse engaged in the affair. The result is that a greater share of the remaining community estate on date of divorce is awarded to the innocent spouse.

The other area sure to get a court concerned about infidelity is when a spouse exposes children to the extra-marital relationship early in the separation process. There is no single rule regarding how and when children should be made aware of new adult relationships. Factors too numerous to calculate (age of children, length of time of separation, maturity levels of both parents and children, etc.) prevent one useful rule. But there are circumstances when a parent’s introduction of the new relationship shows poor parental judgment. Courts favor insulating children from all negativity between the adults to the greatest extent possible during the divorce process. This definitely extends to how, when, and under what circumstances a parent introduces a new adult
love interest.

In truth, there are cases where infidelity plays a very big role in the legal case. Conversely, there are cases where infidelity clearly exists but plays virtually no role in the legal case. How or whether the issue is of import should be carefully considered by parties contemplating divorce. For a careful analysis of issues resulting from infidelity or possible infidelity in marriage, schedule a private consultation with the Law Office of David A. Kazen.