Infidelity: How Much Does it Matter in My Divorce?

The quick answer? It depends.

And how much it matters also depends on a number of factors.

Texas is a “no-fault” divorce state, which means that in order to get a divorce, you only need to allege that you and your spouse’s relationship has become “insupportable” because you no longer get along. However, you can allege adultery as a fault ground in Texas and request a disproportionate share of the community estate as a result.

It is a common myth that if one spouse is caught cheating, the non-cheating spouse is almost automatically awarded a massively disproportionate share of the community estate as punishment for the infidelity. This can be true, as always, it will depend on your circumstances.

The truth is, the court cannot really “punish” the cheating spouse. What the court can do, however, is award a disproportionate share of the community estate to the non-cheating spouse to compensate them for the economic value of the marriage they would have received had the infidelity not caused the marriage to end. This may not seem like an important distinction, but framing adultery in a more equitable fashion could help
persuade the trial court to award the non-cheating spouse a bigger share of the marital estate. This is especially true if the non-cheating spouse is a stay-at-home parent or earns significantly less income than the cheating spouse.

Another factor for the trial court to consider is whether the spouse spent considerable sums of money on their paramour. If this is proven, the community estate could be entitled to a reimbursement claim for the amount of money spent on the paramour. For example, if your spouse had an affair and spent tens of thousands of dollars on gifts, fine dining, hotels, etc. those expended funds will be reimbursed to the community and can be awarded to you from the cheating spouse’s share of the overall asset division.

Reimbursement claims will need to be proven in court (or agreed to in settlement). To obtain a reimbursement claim based on infidelity, you will need to first prove that the infidelity occurred. Sometimes, the cheating spouse simply admits to the affair upon confrontation. Oftentimes though, they deny, lie, and try to hide the truth from their spouse. Most people these days get caught cheating by being careless with text messages or social media accounts. Other times, when a spouse becomes suspicious, he or she may hire a private investigator to tail their spouse and catch them in a compromising situation.

Regardless, the non-cheating spouse will need to provide evidence beyond their mere suspicion in order to prove adultery. You will also need to prove that your spouse spent money on their paramour. Transactions in bank records, credit card statements, and other documents showing
unusual expenditures on gifts, meals, and hotels are the most common forms of proof. If you can prove the wasteful spending on an extramarital affair, or that you are suffering a great economic disadvantage because your marriage is ending, it could very easily generate a higher amount of assets to you in a divorce.