Divorcing a Cheating Wife (or Husband) Dos and Don’ts

Divorcing a Cheating Wife (or Husband) Dos and Don’ts

When it comes to mental anguish and despair, you’d be hard pressed to find anything that stings quite as much as infidelity. If you recently found out your husband or wife cheated divorce may be top of mind. Even if you’re wondering, “Is my wife cheating?” (or husband) it may be a good idea to take time to find out what options are available to you, what to expect when divorcing a cheater and what impact infidelity can have on a divorce settlement.

It’s also helpful to take stock of what you should and should NOT do when a spouse cheats. We get it. If you’re spouse has cheated on you, feelings of anger and a desire for revenge may be flooding your mind right now but be warned. You could very well face repercussions if you lash out at your spouse. In fact, actions you take could affect everything from child custody to how your marital estate will be divided in the event of divorce.

Where you live matters when divorcing a cheating wife or husband

If you’re thinking about filing for divorce from a cheating spouse, it’s important to know that different states view infidelity differently. One of the key differences pertains to marital property laws. So, divorcing a cheating wife or husband in Texas, which is a community property state, tends to be handled differently than divorcing a cheating spouse in a common law property state like New York.

In general, property purchased in common law property states is considered the property of the spouse who purchased the property, unless the spouses register the property in both names. If you live in Texas, there is a presumption that any property acquired during marriage is considered community property and subject to just and right division upon divorce.

Texas, like some other states, is also a no-fault divorce state, which means you don’t necessarily need to prove fault in order to get a divorce. You could file for divorce based on insupportability, which is commonly referred to irreconcilable differences in other states.

However, Texas will consider fault grounds, including adultery, as a reason to file for divorce, and depending on the egregious nature of the fault, those grounds could have an impact on the just and right division of the marital estate and other matters. So, if you’ve been cheating on your spouse for years, and your spouse has a good attorney, you could end up with a much smaller portion of your marital estate than you expect, should you divorce.

Bringing a third party into a marriage—cheating—can also be risky if you hope to secure a favorable custody agreement. We’ll share more insight on the impact of infidelity on both property division and child custody in Texas later in this post.

Learn more about the seven grounds for divorce in Texas here.

My wife cheated on me and I want a divorce. What are my rights?

The topic of cheating wife divorce rights and cheating husband divorce rights comes up regularly during client conversations with our Fort Worth and Dallas family law attorneys.

If your husband or wife cheated on you, there’s no question, you’ve been wronged. However, if you want to divorce a cheating wife or husband, it’s important to understand that you don’t have any inherent rights when a party cheats in Texas.

On the other hand, what infidelity does do is it allows you to have the ability to ask for unequal division of the marital estate. In Texas, we refer to this as a civil remedy. That means you have the ability to pursue a civil remedy asking for unequal division of your estate. A husband or wife’s infidelity and divorce case may also allow you to request a civil remedy asking for temporary spousal support, custody, child support and use of property, among other requests.

So, to be clear: the court does not afford you specific rights if there was cheating but infidelity can tip the scales in your favor and impact your case. This may include changing property division and also allow for certain temporary injunctions while your divorce for cheating case is pending.

I’m divorcing a cheating wife or husband. What does unequal property division look like?

Great question! But there isn’t a clear-cut answer we can give you here when it comes to property division when you’re divorcing a cheating wife or husband. It all depends on the unique circumstances of your case.

No divorce attorney can tell you what an unequal division of your marital estate means over the phone (or in a blog post). But what you should know is if you do have grounds (whether it’s adultery or another fault ground, like family violence), you may be able to ask for a bigger piece of the marital pie.

Keep in mind, the court will make a decision based on the evidence presented. What they do is look at each case on an individualized fact-finding basis. There is no bright line or statute in Texas that states exactly what that unequal division will look like. In other words, you should expect a bit of wait and see.

I will say this. As someone who has felt the impact of adultery first hand and seen friends, family and children go through it, I take infidelity very seriously. And when I say I take it very seriously, that means I go for the maximum result for my clients. That includes more time, more energy, more money, attorney’s fees paid by the adulterous spouse, and so on.

What facts will the court consider when dividing a marital estate in a cheating wife divorce or cheating husband divorce?

What the net effect of fault and the breakup of the marriage does—in this case adultery—is it swings the scale as far as the divisible assets go and tips it toward the non-bad actor, if you will. Based on adultery alone, the court could decide to award the non-cheating party a larger portion of the marital estate.

The more egregious the adultery, the more likely the other party will receive a larger piece of the pie. In fact, our firm has won some landmark cases where we’ve tipped the divisible assets scale significantly toward our non-cheating clients’ favors. Have we tipped those scales  to get our client more than half of the marital estate? Yes, we have—in rare cases 70% or more. There’s no question, adultery can have a huge impact on a divorce settlement in Texas.

TIP: If you want that bigger piece of pie, it’s really critical to hire a divorce attorney who has experience successfully representing clients in infidelity divorce cases. During your initial consults with attorneys, be sure to ask them to share examples of results they’ve achieved for other clients who have been in situations similar to yours.

Another factor the courts will take into consideration in a divorce for cheating is wasting of community assets. If your spouse cheated on you with a third party, and they have wasted / used / spent community funds on that third party, you could file a community wasting claim. This allows you to actually reconstitute the marital estate and take the money that was spent on a third party back into the community estate, then award that to the you, as the non-cheating party. (Keep in mind, you will need to provide evidence that wasting of marital assets has occurred.)

For example, say the cheating spouse spent $100K on a third party, so you ask the court to find there was wasting of $100K in marital assets. If the court finds by clear and convincing evidence that wasting of $100K occurred, it could then up the value of the estate from what was previously $1 million dollars to $1.1 million, they give you $550K and the other party $550K.

The $100k that was gone is not a real tangible asset, so it’s a restitution, so how do you get the other $50K? What the court generally does in these situations is take that $50K out of the other party’s portion of the pie after the estate has been reconstituted. The reconstitution essentially allows you to look at the estate as if the cheating wife or husband has already spent the money, while imagining those assets were still there at the time of the divorce.

Unequal property division tends to have a bigger impact on breadwinners and couples with larger marital estates

If you and your cheating spouse have few to no assets, you can generally expect the financial impact on the cheater in your cheating spouse divorce to be minimal. Where we see the biggest result occur is when one party has a lot of resources and they step out on the marriage. and/or when the two parties share a large community estate. Those are the cases where we pull out the big guns and go for maximum financial results, as noted above.

In scenarios where one party is a stay-at-home mom or dad, and the stay-at-home party decides to step out on the marriage, that’s when it can get frustrating for the other party. While the party may hope the divorce will allow them to grab that pound of flesh they so desperately want (at least in terms of $$$), that recourse typically doesn’t exist when no assets or access to other resources is in play.

In other words, when there’s not really much of an estate or access to other resources, there’s not a whole lot the courts can do to assist a party in rectifying adultery from a financial perspective. That monetary pound of flesh the cheated-on individual wants just won’t be an option.

How is child custody affected when you divorce a cheating wife or husband?

For the most part, divorce and child custody are treated separately during a divorce in Texas. So, if you’re fired up and your thought process is my wife cheated on me and I want a divorce, AND I want full custody, take a breath. Just because your spouse cheated on you doesn’t mean it would be in the best interest of your child for you to have full custody.

The court will consider what roles the parents have played in the child’s upbringing to date, among other factors, when deciding what parental rights and responsibilities each parent will assume for the child. One of the hardest pills to swallow is when the cheating spouse is awarded primary custody, or conservatorship as it is referred to in Texas. While that may not seem fair, it does happen in cases where the court finds that arrangement to be in the best interest of the child.

That being said, the court may put remedies in place if a cheating spouse is involved with a party who poses a risk to the child or the cheating wife or husband and their lover engage in untoward behavior in the child’s presence. (Untoward behavior may include having intercourse in front of the child or using drugs in the child’s presence, among others.) Those remedies may include limiting the cheating spouse’s access to the child as the custody battle wages on, which could last months or years, depending on the situation.

You’ll want to keep these remedies in mind If you are the party who is guilty of infidelity. Is being with your new lover worth potentially losing access to your children for an extended period of time? What about losing the right to make important decisions for your child’s future until the case is settled? Even if you regain access and custody of your child later, you’ll never regain the precious time lost in the meantime. If you’re only thinking about you and not your kid, that’s the price you could end up paying, and it’s a big one.

Dos and Don’ts when divorcing a cheating wife or husband

Some of the insight shared in the “Dos and Don’ts” below were alluded to above, while other recommendations involve common sense. However, we know that being the victim of infidelity is a very difficult experience to go through. People often make decisions or take certain actions they normally wouldn’t, due to the emotional toll adultery brings. Before you say or do something you regret, consider the following “Dos and Don’ts.”

DON’T resort to domestic violence. While this “Don’t” falls into the common sense category, domestic violence against a spouse, child or other family member frequently occurs following an adultery revelation. If your anger is running sky high and you’re having thoughts of harming your spouse or child, physically remove yourself from the situation and seek help from a mental health professional or clergy member right away.

Not only is family violence morally wrong, it could also jeopardize your divorce settlement (family violence is another fault ground in Texas) and your child custody goals.

DO be proactive about your mental health. It’s never a bad idea to seek the guidance of a mental health professional when going through a divorce. This is especially true if you’re wondering “Is my wife cheating?” or when adultery is the reason your marriage is ending. A therapist or psychologist experienced in family counseling and divorce will understand what you’re going through and can provide the tools and insight you need to process your anger and pain.

In addition, the safe environment of a clergy member or mental health professional’s office is usually the best place to air your grievances, freely express your emotions and be heard and validated. While it’s nice to have family members and friends act as a sounding board, any advice they give should only be taken with a grain of salt. Rely on a professional to learn how to cope.

TIP: Learn more about the emotional toll of divorce and get tips for coping in this past post.

DON’T mistake the courtroom for a therapist’s office. Many victims of adultery believe they will be able to air every little detail of their cheating wife or husband’s adulterous affair in court, along with the full, horrendous impact that cheating has had on their mental health. They want their pain alleviated by having the adultery fully exposed in court. But the family courts don’t work that way.

While judges do have compassion, and they do care, they also deal with cheating husband and cheating wife divorce cases every day. That’s not to say the judge won’t consider the impact the adultery has had on your case, they will. However, the judge’s job is to consider the facts, not act as a sounding board for you.

DO hire a divorce lawyer with experience handling adultery cases. Divorces involving infidelity and property division—especially when a sizeable estate is involved—can get complicated. When dealing with a husband or wife’s infidelity and divorce and with so much is on the line, you want to make sure the attorney guiding your ship fully understands the different options available to you and how to best approach your case.

An attorney experienced in handling the ins and outs of a divorce for cheating will know how to set your case up for success and provide the guidance you need to achieve optimum results. While we as attorneys understand you’re going through a very challenging time, we also know when it’s best to discuss certain details pertaining to your case and when it’s best to hold information close to your vest.

Timing is critical during divorce mediation and trial. For example, say you’re divorcing a cheater, and we know there’s a smoking gun, where we can show perjury or a misrepresentation of facts occurred on the other party’s part. We may not want show our hand right away. It may be more beneficial to get more testimony from the party and further develop that smoking gun, so we have the ammunition we need to apply pressure to the other party at the right moment.

When divorcing a cheating wife or husband, get legal advice sooner rather than later

Fort Worth and Dallas family law attorney Justin Sisemore and his experienced legal team have been helping clients navigate the complexities of divorce since 2007. We understand the challenges individuals face when adultery is a factor in divorce and have successfully achieved superior results for our clients for decades.

If you’d like to know how we would approach your specific case, we invite you to schedule a confidential case review with our team. To schedule an appointment with a divorce attorney at our firm, please call (817) 336-4444 or connect with us online.

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