Articles Posted in Adultery

You may not think that this distinction is important, but in the world of family law it is imperative that you understand the difference.  It could be the difference between you actually being the father of a child in the eyes of the law as well as differing burdens of how to overcome that label if you are not the child’s biological father.  In fact, if you are in the middle of a divorce or a suit affecting the parent child relationship, knowing your definitions is crucial when it comes to duties to support children and your rights to visiting those children.

Texas Family Code Section 101.0015 defines alleged father as a man who “alleges himself to be, or is alleged to be, the genetic father or a possible genetic father of a child, but whose paternity has not been determined.”  So, if you think that you are the father of a child but it has not been concluded by court ordered genetic testing—then you are an alleged father.  We see this type of scenario come up in situations such as cases involving the Attorney General’s Office of Texas.  If a woman petitions the Attorney General’s Office for child support, then that agency will file a lawsuit and have all of the alleged fathers served.  It is then your duty to ask for genetic testing if there is any doubt in your mind about whether or not you are the father.  Once genetic testing is completed and paternity is established, you then become an adjudicated father.   Adjudicated father is defined in Texas Family Code Section 160.102(1) as a man who is determined to be the father of a child by the Court.  Therefore, once your paternity is established by results of genetic testing then the Court will name you as the father and proceed forward with child support, visitation, etc.

In contrast, Texas Family Code Section 160.204 defines a presumed father as follows:

When pleading for a divorce in Texas, you have to consider—aside from the emotional aspect—why exactly you are getting a divorce.  Did your spouse cheat on you?  Did your spouse abandon you and what does abandonment mean?  Or, do you and your spouse argue often and have you grown into separate people rather than being the one person united on the date of your marriage?  To answer this question, it is important to discuss your options and what could be included in your pleadings.  Reason being, Texas has two separate statutory grounds for divorce—fault or no-fault.

Fault grounds of divorce are specifically outlined in Texas Family Code Chapter 6, Subchapter A.  They are listed as follows: cruelty (you are a victim of cruel treatment at the hands of your spouse and you cannot continue to live with him/her); adultery; conviction of a felony (and they have been imprisoned for at least a year and not pardoned); abandonment (your spouse left you and has remained away for at least a year without an intent to return); living apart (you and your spouse have not lived together for at least three years); confinement in a mental hospital (spouse has been confined to a mental hospital for at least three years and their mental state is so severe that a relapse is probable).    Therefore, the Texas legislature has carved out why you could ask for a fault divorce and what exactly those faults entail.  As you can see, the grounds are very specific and most are uncommon.    Most often, we see cases under the fault grounds of cruelty or adultery.

So, now you are wondering why, if you qualify under any of these grounds, would you plead a “fault” ground—what would be the benefit?  Basically, pleading for a fault ground leads to a request for a disproportionate share of the community estate.  The court can consider one of the spouse’s “fault” when deciding how to divide community property between the two parties.  The Texas Family Code mandates that the court make a “just and right division” of the community estate.  Most people believe that this means an outright 50/50 split, but that is incorrect.  The judge has a lot of determination and leeway in determining which spouse gets what property and/or debt.  So, if you would like for the court to consider giving you more than what would be given absent the fault it is important to discuss this with your attorney and consider your options.