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
High Asset Divorces: Separate Property Real Estate and Trusts
It is important to know what happens to your homestead residence if it was purchased prior to marriage and other assets formed into a trust before marriage without a prenuptial agreement.
- Separate property homestead residence
Single most important event for leverage is who files their Divorce Petition first. If you file first, you are a Petitioner. A Petitioner receives a crucial benefit in litigation. A petitioner is afforded the opportunity to talk first and last in litigation, sets the tempo of the divorce, and creates the narrative of the divorce. Being a Petitioner is invaluable, thus if you have decided that you need to divorce your spouse, you should look to file the divorce petition first.
Temporary Orders are usually, absent emergency relief, the first hearing the Court will have in the case. At temporary orders the Judge will likely attempt to (1) place a band-aid on all assets of the marriage to ensure there is no wasting of assets, (2) determine custody and access of the children, and (3) ensure payments remain the same towards any separate or community property assets. Temporary spousal maintenance, exclusive use of property, and injunctions are granted at this hearing. In a divorce with high value assets this hearing is pivotal in determining how litigation will continue in the future. Every Court is different but multiple additional temporary order may be filed or clarification motions to ensure that the children and property of the divorce are protected.
2. Discovery Phase and Experts
The discovery phase may be cumbersome and painful. Discovery consists of multiple written questions that one spouse is asking the other during the divorce litigation. These include production questions (asking for documents), interrogatories (questions require a written notarized responses), admissions (admit or deny questions), depositions (typically 6 hour cross examination in front of court reporter at an attorney’s office), and inventory and appraisal (sworn list of assets and values of each asset). These processes are usually expensive but necessary to prove the amount of the marital estate and the characterization of property.
Experts are also employed at this stage. They are costly but necessary to prove tracing, the value of any potential fraud against martial property, or the overall value of a business that one spouse may own. These issues are likely contested, thus the battle of experts continue until the final hearing.
3. Depositions
A deposition is a formal question-and-answer session used in divorce cases to gather information under oath before going to trial in a case. It typically takes place in a lawyer’s office, where one spouse (the deponent) answers questions from the opposing attorney while a court reporter records everything. The purpose of a deposition is to uncover facts, clarify disputes, and assess how a witness may testify in court. While it doesn’t happen in a courtroom, the statements made during a deposition carry legal weight and can be used as evidence later. Depositions can sometimes be a total of 6 hours of questing the deponent.
During a deposition, attorneys may ask about finances, assets, parenting abilities, or any issues relevant to the divorce. It’s a structured process, but it can feel intense—especially if the other lawyer is trying to challenge credibility or uncover hidden details, such as finding additional martial assets. Being honest and composed is key, as misleading answers can backfire. Having an attorney present helps ensure that questions are fair and objections can be made when necessary. While depositions may seem intimidating, they are a valuable tool in ensuring transparency and helping both sides prepare for a fair resolution.
4. Mediation
Meditation may occur in the middle or toward the end of the litigation process. The cost of a good mediator may range from $2,000.00 to $3,500.00 per side. The mediation process can be difficult and last from a half day (4 or so hours) to more than a full day. Some mediations go for 14 to 15 hours to obtain settlement. Though this is expensive, it is still less costly than going to a final trial and many outcomes or solutions may be obtained by agreement of the parties to which a Judge cannot order. The flexibility of mediation makes this process less painful and costly than attending a final trial.
5. Final Trial before the Court or Jury
Final trial may be performed solely by a Judge or a Jury of 12 peers. Only 10 of 12 Jury members are needed to find in favor of either party. A Jury trial is more expensive, takes more time to prepare, and may be more risky depending on the County and facts of each specific case. A trial before the Judge is cheaper and may simplify many matters. It is important to know for every 1 hour in Cout it takes more or less 4 hours to prepare.
A jury trial with a minimum of 2 experts and multiple other fact witnesses should take anywhere from 4 to 7 days. A trial before the Judge for a similar case may take 2-4 days, depending on how the Judge runs the Court.
There are many trials and tribulations an individual will have to surpass in the Court system if they are divorcing with high assets. It will likely be costly, painful, but necessary. Many other factors such as summary judgements or motions to exclude witnesses, experts, or exhibits, may increase fees. It is important to be confident with your attorney and find a firm that has experience with higher assets cases to ensure the flow and strategy of the litigation fulfills your goals.
Dallas High Asset Divorce Attorneys
Nacol Law Firm P.C.
(972) 690-3333
Contesting a Will in Texas
Typically, standing to contest the validity of a Will is limited to two classes of persons:
1) a person who is named on the face of the Will (i.e. any beneficiary); and 2) a person who would inherit from the testator if the Will was invalid.
The most common grounds, or reasons, for contesting a Will are:
- Undue influence – is an equitable doctrine, which involves one person taking advantage of a position of power over another person. In such cases, free will to bargain is not possible.
- Duress
- Election against the Will by a widowed spouse or orphaned children
- Fraud – a deception made for personal gain or to damage another individual
- Insane delusion
- Testamentary capacity (same as a lack of disposing mind and memory) – in the common law tradition, testamentary capacity is the legal term used to describe a person’s legal and mental ability to make a valid Will. This concept has also been called sound mind and memory.
Adults are presumed to have the ability to make a will. Litigation about testamentary capacity typically revolves around charges that the testator, by virtue of senility, dementia, insanity, or other unsoundness of mind, lacked the mental capacity to make a will. In essence, the doctrine requires those who would challenge a validly executed will to demonstrate that the testator did not know the consequence of his conduct when he executed the will.
Certain people, such as minors, are conclusively deemed incapable of making a will by the common law; however, minors who serve in the military are conceded the right to make a will by statute in many jurisdictions.
Contract Killers : Arbitration and Selected Forum Provision
Contracts are the concrete pillars of our capitalistic society and govern all transactions promoting trust and stability within our American culture. An individual that enters a complex contract regarding a commercial lease, any professional services, or business and franchise agreements must be aware of two killer provisions that may be game changers if the need for litigation arises.
First, any individual prior to entering a binding contract must first read the contract thoroughly to see if there is an arbitration provision. An arbitration provision has the power to tie the hands of any contracting party. An arbitration provision forces a contracting party into a tribunal of selected arbitrators thus precluding a contracted party from obtaining their day in Court. These provisions must be carefully considered and examined before an individual signs a contracted agreement. This is a non-extensive list of potential problems an arbitration provision may cause:
- Location, Location, Location. An arbitration provision may dictate the location of the arbitration process;
- Attorney’s fees. An arbitration provision may dictate who pays for the attorney’s fees during the arbitration process;
- Selection of arbitrators. An arbitration provision may dictate the selection process used to determine the tribunal of arbitrators which will hear the case;
- Arbitration Provisions are favored by Texas and the Supreme Court and it is difficult to invalidate an arbitration provision.
Second, any individual prior to entering a binding contract must next read the contract thoroughly and determine if a Selected-Forum provision exists. A Selected-Forum provision may dictate (1) the choice of law that will be used while interpreting the contact and (2) the venue or jurisdiction that will apply. Texas favors Selected-Forum provisions and these provisions are difficult to invalidate. This is a non-extensive list of potential problems with Forum-Selection clauses:
- Location, Location, Location. A Forum-Selection clause may force the contracted parties to bring a suit in another state other than the state the contract was signed in;
- Choice of Law. The Selected-Forum Clause may force the contracted parties to utilize another State’s law;
- The Selected-Forum Clause may also include torts. If the Selected-Forum Clause is specific enough it may encompass torts (fraud, negligent misrepresentation, tortious interference with contract) and preclude a party from bringing a tort dispute in a State to which one of the parties reside;
- Selected-Forum clauses are favored by Texas and are difficult to invalidate.
Be wary of arbitration provisions and Selected-Forum clauses. They both may be deal breakers for certain businesses. If you have signed a contract with these provisions there may be remedies but you must consult an experienced attorney.
Julian Nacol, Attorney at Law
Nacol Law Firm P.C.
(972) 690-3333
Family Conflicts and the High Conflict Spouse
A divorce involving a high conflict personality can be more challenging than other divorces, because of the person’s inability to compromise or ever see the middle ground. People like this are called “High Conflict People” (HCP’s), and the divorce courts are full of them.
Are you glad you are not married to one of these people or are you? HCP’s seem very caring and sincere and it may take months or years before a legal professional can identify this personality disorder. HCPs may cause enormous emotional pain and excessive financial costs to their spouse and children before this disorder is brought to light.
Bill Eddy, legal specialist of the High Conflict Institute, has given a list of
The High Conflict Personality Pattern of HCP Personalities
- Rigid and uncompromising, repeating failed strategies
- Unable to heal or accept a loss
- Negative emotions dominate their thinking
- Won’t reflect on their own behavior
- Can’t empathize with others
- Preoccupied with blaming others
- Won’t accept any responsibility for problems or solutions
HCP’s stay unproductively connected to people through conflict and will continue to create conflict to maintain any sort of relationship, good or bad. Since HCP’s undermine all relationships, they constantly repeat their same patterns and usually end up divorcing repeated times. 20-30% of all couples getting divorces have at least one HCP spouse.
According to the High Conflict Institute, HCPS are driven by four primary fees:
- Fear of being ignored
- Fear of being belittled or publicity exposure
- Fear of being abandoned
- Fear of being dominated, includes fear of losing control over you, the other spouse, their money/assets, or themselves
What can the spouse of an HCP do to help bring the family conflict or divorce to completion?
- Tell your attorney what your bottom line is and stay with your decision.
- Maximize any leverage you have and stay on the course.
- Choose your battles carefully.
- Everything must be in writing.
- Work on keeping total & consistent emotional detachment from the HCP.
Just remember the HCP feels that since you are no longer together, and since you know too much about him/her, you must be discredited so that no one will think that they are the problem!
You will need to learn some practical skills on communication and response to your HCP and also when & how to let your attorney deal with this situation, how to enforce your guidelines, and hopefully, your thoughtful and reserved conduct will result in the best possible outcome.
Nacol Law Firm P.C.
Dallas Divorce Attorneys
NACOL LAW FIRM P.C.
8144 Walnut Hill Lane
Suite 1190
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
