"I had an affair. My wife says I am at fault for our divorce, and she plans to take all the property in the divorce. Will she get everything?"

Dallas attorney Ike Vanden Eykel says that although judges rarely award one party all the property in a divorce, fault for the divorce is taken into consideration. This excerpt from his regional bestseller, Successful Lone Star Divorce, tells the story:

Judges would rather not deal with the issue of fault in a marriage. But with the responsibility for property division and the awarding of custody or substantial visitation, judges often get called upon to make a moral judgment of who did what to whom and, therefore, who deserves what. In other words, fault still matters. In fact, the issue of fault is more complicated than ever before.

If there is no fault present and the parties have merely grown apart, the court usually will attempt to divide the community assets and debts of the marriage in an equitable manner.

Texas is one of nine community property states. All property acquired during the marriage is presumed to be community property and is subject to division by the court. Most people assume that division will be equal, but that isn't what the Texas Family Code provides. The law in Texas calls for an equitable or "just and right" division of the property. The separate property of a spouse generally consists of gifts or inheritances, property that was owned by one party before the marriage, or the proceeds from the sale of a separate property asset. Separate property is not divisible by the court. However, a party who is alleging separate property ownership has the burden of proving it is separate by "clear and convincing" evidence.

If the parties cannot agree on the division of property, the judge will determine, based on the facts, what kind of division is fair and equitable. Those facts might include the length of the marriage, the ability of the parties to make a living after the divorce, the assets and debts in question and who gets the children. In some cases, who's at fault for the divorce -- along with the type of fault -- is the tiebreaker.

Ike Vanden Eykel is managing partner of Koons, Fuller, Vanden Eykel & Robertson.

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