“I had an affair. My wife says I’m at fault for our divorce, and she plans to take all the property in the divorce. Will she get everything?”
Although Texas is a “no fault” state, the court may grant a divorce in favor of one spouse if the other spouse has committed adultery. However, in order for a trial court to grant a divorce based upon a fault ground, such as adultery, the court will generally need to hear evidence and find that the adulterous conduct by one spouse is the “cause” of the breakup of the marriage. Under the Texas Family Code, the court is mandated to “order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.” This means that the division of the community property of the parties does not have to be equal. Additionally, if a Court finds that a party is at fault in the break-up of the marriage (such as adultery), the court may make a disproportionate division of the parties’ community estate. However, this does not allow the court to award ALL of the community property to the other spouse. This type of an award would probably be an abuse of discretion by the trial court and would be reversed on appeal.
Michael Geary is a Board Certified family-law specialist and shareholder with the law firm of Geary, Porter & Donovan in Dallas.