Brian K. Tackett

Adultery

Society was not always so forgiving of adultery.

Cheating is devastating for a family, creating deep mistrust and making co-parenting very difficult, but the realities of the judicial system and the often lengthy divorce process have a way of minimizing the importance of infidelity.  While no court will condone adultery, one must remember that your district court judge in Texas may have just heard a case from Child Protective Services or a felony trial involving truly monstrous acts of evil or abuse.  The court just will not be as outraged by the revelation of that illicit affair with the admin, or sexting with an old flame, as the spouses living through the situation. The hard truth is that everyone breaks up for a reason, and often infidelity is that reason. Still, there are some aggravating factors that when present, have serious consequences in divorce:

Were you exposed to an STD?  Did the affair lead to a child?

This is the most egregious form of adultery and will result in the most extreme consequences.  One who knowingly exposes a spouse to an STD may be additionally liable for a tort during their divorce, and have to pay actual damages like medical expenses, pain and suffering, punitive damages, and attorney fees.  Similarly, having a child by with another person will likely lead to every other aggravating factor and consequence in this article.

Were children exposed to the infidelity?

Did your child walk in on a physical act of infidelity?  Did your children learn about an affair in a way that damages them emotionally?  Is one spouse trying to bring a new lover into a child’s life before the divorce is final?  Absent serious abuse, neglect, criminality, or addiction, even adulterous parents have an equal right to share in child rearing after divorce.  Still, exposing a child to an affair can be seriously damaging.  All Denton County judges recognize this and we have a standing order we call “the morality clause” prohibiting unrelated adults from spending the night with parents while they have possession of the children during a divorce.  Depending on the severity of the allegations, the court may enforce these standing orders with fines, contempt, and attorney fees.  Even if the morality clause is not violated, the Court will be less likely to award primary custody to a parent who has exposed a child to an affair, and the court may limit that parents time with the child until they can establish boundaries and act appropriately.

Did the affair cost the family money?

Did your spouse take his or her lover on a vacation?  Do they go shopping, dining, gambling, or drinking together?  Does your spouse pay for membership on a dating site like Match.com or AshleyMadison.com? Courts will take an especially dim view of an affair that depleted the couple’s finances.  Often, the court will assign debt attributable to the affair to the offending spouse.  The court may also deduct money spent on an affair from the cheating spouse’s share of community property.

Are you asking the Court for spousal maintenance or temporary family support?

If so, I hope you were not the one caught cheating. Divorcing couples often have wide disparities in earning capacity and separate property.  When that is the case, the court may equalize the financial imbalance by providing temporary family support while the divorce is pending.  If one party in a 10-year marriage cannot provide for themselves after the divorce, the court may order spousal maintenance.  Both of these involve substantial discretion from the court.  Anytime the court has discretion over your finances, you want the court to like you, and they will not like you if you caused the break up through infidelity.  Adultery does not disqualify a spouse from maintenance or support, but it makes it much harder to get, and much easier to lose.

So will your spouse just get away with infidelity?

There are many big legal issues in a divorce that are mostly unaffected by cheating: child support and separate/community property are two examples. Also, these aggravating factors are actually quite rare.  Most cheaters will want to keep their affairs as discreet as possible, and it takes a special kind of gall to cheat on a person and then demand money. Assuming none of these aggravating factors are present in your divorce, even very callous, hurtful cheating will have limited legal effect.   It is not uncommon for allegations or admissions of adultery to only result in a 55/45 division of community property.  For many middle class couples, that is not enough money to justify the stress, risk, embarrassment, and attorney fees involved in a final trial.  The more serious consequences of this ‘basic’ adultery are seen in settlement negotiations.  The cheating spouse may be very embarrassed that they were caught and exposed.  They may not want their children, church, or friends to learn of the affair.  That shame often leads him or her to agree to more generous support payments or less of a parenting role than the law would otherwise require.   Settlement is generally much cheaper than litigation and the deep resentment that cheating creates can make any settlement slow, costly, and difficult.  No one really, “gets away with it.”  If cheating is or will become an issue in your marriage, talk to a family law attorney today and learn more about your rights.