Infidelity or Adultery in a Texas Divorce
In Texas, adultery or infidelity may play a significant role in how a divorce unfolds, impacting asset division in a divorce and even custody issues to a certain extent. Here’s how adultery generally affects the divorce process in Texas:
1. Grounds for Divorce:
- No-Fault Divorce: Texas allows for “no-fault” divorces, where neither spouse has to blame the other for the breakdown of the marriage. Commonly, the reason cited is “insupportability,” which means that the marriage has become insupportable due to discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.
- Fault-Based Divorce: Adultery is also one of the grounds for a fault-based divorce in Texas. If one spouse can prove the other’s infidelity, it can influence the divorce proceedings, particularly in financial settlements and custody decisions. The Court of Appeals has given the following definition of Adultery: “the voluntary sexual intercourse of a married person with one not the spouse.” In re S.A.A., 279 S.W.3d 853, 856 (Tex. App.—Dallas 2009, no pet.)
2. Impact on Division of Assets:
- In Texas, the court divides marital property based on what is “just and right.” While this typically starts with the presumption of a 50/50 split, proven adultery can lead the court to award a more favorable division to the non-adulterous spouse. This is because the court may consider the circumstances and factors under which the property was acquired and the behavior of the parties during the marriage. Such factors include: Such factors include (1) the nature of the marital property, (2) the relative earning capacity and business opportunities of the parties, (3) the parties’ relative financial condition and obligations, (4) the parties’ education, (5) the size of separate estates, (6) the age, (7) health, and (8) physical conditions of the parties, (9) fault in breaking up the marriage, (10) the benefit the innocent spouse would have received had the marriage continued, and (11) the probable need for future support. Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981).
3. Impact on Child Custody and Visitation:
- While adultery by itself does not necessarily impact custody arrangements, the circumstances surrounding the adultery might. For instance, if adulterous behavior also involved other conduct that could be deemed harmful to the children it could influence the court’s decisions regarding custody and visitation rights. More common repercussions for Adultery or Infidelity in a divorce are what the Court’s call a “morality clause”. This provision usually prohibits one parent from having a romantic third-party guest stay in the house while the children are present from 8:00 pm to 9:00 am the next day.
4. Proving Adultery:
- Proving adultery in a divorce case requires evidence that convinces the court of the likelihood that infidelity occurred. Direct evidence is not necessarily required; circumstantial evidence that suggests the likelihood of both opportunity and inclination to commit adultery might suffice. The burden of proof is the preponderance of the evidence, thus just a little more than 50%. It should be known that actions of adultery and infidelity are still probably even after separation and during the divorce litigation.
Adultery and Infidelity are not as damaging in the modern era, though it is completely fact intensive and dependent on the Judge in your case. Some Judges take Adultery in a Texas Divorce more seriously than others. It is a liability to mitigate if it has occurred.
Julian Nacol
Nacol Law Firm P.C.
Dallas Divorce Attorney
(972) 690-3333
Children Born Outside of Marriage: Unknown Descendants that May Inherit
Creating a Will is extremely important for individuals that have a sizable estate in the Dallas and DFW metroplex. Time and time again, individuals refuse to properly prepare for death and do not see the proper preparation of a legal and valid will as a necessity.
When you refuse to prepare a Will, then your entire estate will pass through the intestate process. Intestate rules apply if: (1) there is no will, (2) the will does not completely dispose of the entire estate, or (3) there is a pretermitted child/adopted child born after the will’s execution.
In certain situations, a child born outside of a marriage may still claim inheritance rights per the rules of Intestate succession. Nonmarital children may establish inheritance rights from the alleged father if the presumption of paternity is proven in court. Paternity is presumed if one of the following elements are met per Tex. Fam. Code § 160.204:
- The child was born during (or within 300 days after) the marriage of the man and the child’s mother;
- During the first two years of the child’s life, the man continuously resided in the same household as the child and represented to others that the child was his; or
- The parties married after the Child’s birth and the man voluntarily asserted his paternity of the child in one of the following ways:
a) The assertion of paternity is in a record filed with the Bureau of Vital Statistics;
b) The man was voluntarily named as the Child’s father on the birth certificate; or
c) The man promised in a record to support the child as his own.In many cases a child that was born out of wedlock may still inherit from the father’s estate if the above mentioned actions can be proved. Depending on the estate, this ability to prove the presumption of paternity can have a great impact on the allocation of the estate’s assets.
Paternity may be rebutted, even if the presumption is proved by a preponderance of evidence, by a DNA test. DNA testing is the only option to rebut the presumption of paternity. Depending on the estate and the desires of all parties involved, a Judge may order that the body be dug up for a DNA sample of the deceased. This is rare, but the Court does have the authority.
It is important to remember that the Statute of Limitations to establish inheritance rights or the presumption of paternity begins at the date in which the father died. The statute of limitations is four years, which means any potential claim must be brought within four years of the individual’s death.
If you are a nonmarital child or born out of wedlock in the DFW area, you may still inherit as a matter of law. A will created prior to the birth of a nonmarital child will not cut off the child from his or her rightful inheritance. For situations like this, please contact Nacol Law Firm to acquire an experienced attorney to navigate through intestacy laws and probate.
Julian Nacol
Dallas Probate Attorney
Nacol Law Firm P.C.
tel: (972) 690-3333
Litigation in Texas
The first step to begin a lawsuit in Texas is to finding a lawyer who is knowledgeable and experienced in the area of your legal concern.
In Texas, the filing of an original petition or a complaint officially starts a lawsuit. The complaint will state the facts of the case, spell out the legal issues as they relate to the facts and request the Court grant relief. The complaint is then filed with the court and served on the Defendant who will have a set period of time to respond.
After the complaint has been filed and the Defendant has entered his answer, the discovery phase of the lawsuit begins. During the discovery process, the counsel for each side will gather as much evidence as is reasonable to present their case to the judge or jury. Such discovery includes but is not limited to depositions (sworn testimony taken out of court); disclosure of witnesses, experts and other necessary information; interrogatories (written questions); requests for production of documents; requests for admissions; requests for business records, and electronically stored information (ESI), etc. Discovery may last from a few months to a year, and in some cases several years. Discovery rules can be very liberal, allowing a great deal of evidence to be revealed.
In Texas most courts require the parties to mediate a case before allowing it to go to trial. Mediation can be a useful process as it allows both sides to state their case to a neutral party who has experience in the issues being mediated and who will attempt to assist in the resolution of the case before the parties are forced to incur the expense of a trial. In many cases, the mediation process is a good gauge for a possible trial outcome. At a minimum, it allows each side to measure the strengths and weaknesses of the case.
The pre-trial conference takes place approximately one week prior to the case going to trial and presents yet another opportunity for counsel to settle the case or review the issues. During the pre-trial conference the counsel speak informally with the judge and agree to the undisputed issues. They share the evidence they intend to present during trial and the witnesses they plan to call to testify. The parties, along with the judge, are then able to plan the course of the trial.
After completion of the discovery, mediation and the pre-trial conference, should the parties be unable to settle the case, it will then be placed on the Court’s trial docket and proceeds to trial.
The trial most commonly proceeds in the following manner: Plaintiff’s attorney makes an opening statement detailing the facts of the case followed by the Defendant’s attorney detailing the defenses; Plaintiff’s witnesses and evidence are introduced, examined and cross-examined; Defendant’s witnesses and evidence are introduced, examined and cross-examined; Plaintiff and Defendant are allowed to introduce rebuttal evidence; and, finally, Plaintiff presents their closing argument, followed by the Defendant’s closing argument.
When a jury is hearing the case, a judge will instruct the jury as to the law that is to be applied to the issues. The jury will then retire to the jury room until a verdict is reached. Should the jury end in a deadlock, the judge will normally send the jury back to deliberate until a verdict is reached. If a verdict cannot be reached, the judge must declare a mistrial. If a verdict is returned, the judge will generally enter a judgment on the verdict.
Texas Divorce Financial Checklist for 2026
Preparing for a Texas Divorce: Assets
Going through a Divorce is painful no matter the circumstances. Before you get into the Texas Divorce Process, you can reduce expense, stress, and conflict by making sure you are financially prepared. Advanced planning helps you in making sound decisions, start preparing for post-divorce life, and avoid many post-divorce pitfalls. Below is a list of items you need to gather before counseling with an attorney. Financial Documents are a must to show what your true assets and liabilities are in the marriage. This is a very general checklist. Disregard what is not pertinent to your situation.
Documents:
- Taxes (at least three years)
- Federal Tax Return
- State Tax Return
- W2
- Tax Liens
- All other IRS related documents
- Wills and Trusts with all attachments reflecting corpus and trust holdings
- Listing of all liabilities (including mortgages, credit card debt, personal loans, automobile loans, student loans, etc.):
- Name of entity, address, and telephone number
- Account number
- Amount owed
- Monthly payment
- Property securing payment (if any)
- Most current statements and account status of lenders (from last 3 years)
- A Listing of the address and location of all Real Property, (includes time-shares, vacation properties, commercial property, and lots):
- Deeds of Trust
- Notes including equity loans and second liens
- Legal Descriptions
- Mortgage Companies and Loan Servicers (Name, Address, Telephone Number, Account Number, Balance of Note, Monthly Payments) for all Primary and Secondary Mortgages
- Evidence of purchase gift or inheritance documents
- Current fair market value.
- Appraisals
- Motor Vehicles (including mobile homes, boats, trailers, motorcycles, recreational vehicles; exclude company owned):
- Year, Make, Model of all Motor Vehicles
- Value
- Name on title
- VIN Number
- Fair Market Value
- Name of creditor (if any), address and telephone
- Persons listed on debt
- Account number
- Balance of any loan and monthly payment
- Net Equity in vehicle
- Current statements from last 3 years
- Cash and accounts with financial institutions (checking, savings, commercial bank accounts, credit union funds, IRA’s, CD’s, 401K’s, pension plans and any other form of retirement accounts):
- Name of institution, address, and telephone number
- Amount in institution on date of marriage
- Amount in institution currently
- Names on Account and Account Number
- Social Security Documents
- Pension Documents
- Company loans and documents related to benefits
- At least 3 years statements on all pertinent accounts
- A listing of separate property (property owned prior to marriage, family heir looms, property gifted, inherited property):
- Records that trace your separate property. These assets will remain yours if properly documented
- Retirement Benefits:
- Exact name of plan
- Address of plan administrator
- Employer
- Employee
- Starting date of contributions
- Amount currently in account
- Balance of any loan against plan
- Documents (Date of start of plan is especially important for divorce settlement)
- Publicly traded stock, bonds, and other securities (include securities not in a brokerage, mutual fund, or retirement account):
- Number of shares
- Type of securities
- Certificate numbers
- In possession of
- Name of exchange which listed
- Pledged as collateral?
- Date acquired
- Tax basis
- Current market value
- If stock (date option granted, number of shares and value per share)
- Stock options plans and related documents
- Insurance and Annuities Policies and Inventory:
- Name of insurance company
- Policy Number
- Insured
- Type of insurance (whole/term/universal)
- Amount of monthly premiums
- Date of Issue
- Face amount
- Cash surrender value
- Current surrender value
- Designated beneficiary
- Other policies and amendments
- Closely held business interests:
- Name of business
- Address
- Type of business
- % Of ownership
- Number of shares owned if applicable
- Value of shares
- Balance of accounts receivables
- Cash flow reports
- Balance of liabilities
- List of company assets
- Hobbies or side businesses that generate income
- Mineral Interests (include any property in which you own the mineral estate, separate and apart from the surface estate, such as oil and gas leases; also include royalty interests, work interests, and producing and non-producing oil and gas wells:
- Name of mineral interest
- Type of interest
- County of location
- Legal description
- Name of producer/operator
- Current market value
- needs leases or production documents related to the asset
- Money owed by spouse (including any expected federal or state income tax refund but not including receivables connected with any business)
- Household furniture, furnishings, and Fixtures
- photos
- purchase documents
- Electronics and computers including software and hard drives
- Antiques, artwork, and collectibles (including works of art, paintings, tapestry, rugs, crystal, furniture, quilts) All major collections always need to be appraised! (Cars, Guns, Jewelry, Coins & Stamps, Action Figures, and Books)
- Miscellaneous sporting goods and firearms
- Jewelry including appraisals
- Animals and livestock
- Farming equipment
- Club Memberships
- Safe deposit box items
- Burial plots including documents of ownership
- Items in any storage facility
- Travel Awards Benefits (including frequent flyer miles)
You may decide to divorce or not, but it is very important to have all financial information before you enter into a Divorce! This is a very general Divorce Financial Asset checklist. Disregard what is not pertinent to your situation.
After reviewing this list, you may also decide to go and review the Family Information Form. This form is basic information about you and your spouse. By the time you are looking at this, you will realize that you may not really know your spouse’s information. You will need to know the correct information before filing for divorce in Texas.
These two informational lists will prepare you with the basic financial information that any attorney will need to get your divorce started.
You can click on these links to download and print our Texas Divorce Financial Checklist and Family Information Form for a Texas Divorce.
Nacol Law Firm P.C.
Dallas Divorce Attorneys
Call (972) 690-3333
Consolidation of Cases
Suppose, for example, that you have decided to bring a suit against your employer for workplace harassment that occurred in the Fall of 2022. Suppose also that one of your co-employees also brings a suit against that employer for workplace harassment due to the same or similar actions on the part of the employer that also occurred in the Fall of 2022. Pursuant to Tex. R. Civ. P. 174(a):
When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.
Consolidation is appropriate if one trial or hearing would serve the same purpose as two, provided no party is prejudiced. A court will consolidate two cases if the result is fewer trials, reduction of time consuming examination of evidence, and reduction of costs. Essentially, a court will consolidate to promote judicial efficiency. [H. Rouw Co. v. Tex. & N.O.R. Co., 260 S.W.2d 69, 69–70 (Tex. Civ. App.—San Antonio 1953, no writ); see Frumer, Multiple Parties and Claims in Texas, 6 Sw. L.J. 135, 138 (1952)].
If several independent actions that could have been joined as one action originally (see Tex. R. Civ. P. 40(a), 51) are pending in the same court, a court may order the actions consolidated into one action. Tex. R. Civ. P. 174(a). A court also has the discretion to transfer a case to another court in order for those cases to be consolidated.
Considering the above scenario where you and one of your co-workers brought nearly identical separate actions against your employer, the chief consideration of a court in deciding whether the two cases should be consolidated is whether the two cases derive from a “common question of law or fact.” In this simplified scenario, it is highly likely that a court would consolidate the two cases because they have same questions of law (i.e., the same causes of action and legal theories) and of fact (i.e., the same factual scenario of being discriminated against within the same time period). While there could be an argument made that your suit contains different facts and scenarios because you are a completely different party from that of your co-worker, such an argument may be futile because courts have an abundance of discretion on this issue and are chiefly concerned with judicial economy. A court would likely see two harassment cases arising out of similar actions of the employer that occurred around the same time period and conclude that the cases likely have a common question of law or fact, almost certainly could have been joined as one action originally, and would be more efficiently tried as one case.
As you can imagine, more complex, nuanced questions of consolidation can arise. Say, for example, you are sued for breach of contract by an individual and separately for fraud by an LLC owned by that same individual. Suppose, while those claims are different, they are still related to the same set of factual circumstances. May a court still consolidate these cases together? Perhaps. The court has broad discretion when determining whether to consolidate. At the end of the day, “the underlying test remains whether the two actions have a logical connection in the sense that it would be more convenient and efficient for the two actions to be tried together.” 7 Dorsaneo, Texas Litigation Guide § 112.02 (2024).
Nacol Law Firm P.C.
Dallas Civil Litigation Lawyers
Call (972) 690-3333
Disclaimer: The information provided in this article is in no way intended to constitute legal advice. The information provided is merely an overview of the relevant law. Do not act on this information. Always consult an attorney for legal advice.
NACOL LAW FIRM P.C.
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Dallas, Texas 75231
972-690-3333
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Attorney Mark A. Nacol is board certified in Civil Trial Law by the Texas Board of Legal Specialization