My husband is having an affair, can I use that against him in a divorce case?

This is such a hard issue that so many of my clients face. A divorce alone is emotionally and mentally draining, but when you add in an affair, it makes it such a hard case. In Texas, there are two different kinds of divorces, no-fault and fault. Fault divorces have specific statutory grounds, adultery being one of them. However, you must be able to prove the adultery in order to get the ultimate relief requested. This, sometimes, requires us to go so far as to have the person within whom your spouse is having the affair with to come and testify about the affair. This is accomplished through a subpoena to testify.

Most of the time, the purpose of pleading fault divorce is to ask for a disproportionate share of the community estate. The courts have a wide discretion in separating and awarding community property between the parties because they are only bound by the Texas Family Code to do a “just and right division.” Most of the time, the parties get a pretty even split of the property. However, in cases of fault, the court could examine that and as a way to compensate the other party, give them a little more assets than they would have before. It can also be used to the non-cheating party’s advantage in cases where they meet the requirements to request spousal maintenance.

Therefore, the answer is yes but ensure that it is going to be worth it–do you have a lot of property/assets or debts that you want to ensure that you (a) either get more of; or if it’s a debt issue (b) you get less or none. Our family law attorneys at Guest & Gray, P.C. would be happy to work with you to determine what the best avenue is for you to take.

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