I’m often asked if adultery is the main reason people divorce. My answer is no, but it’s one of the main symptoms of a failing marriage. And even though extra-marital relationships aren’t the main cause (in my opinion), they certainly end up being a big focus of the divorce process.
So, when a party who has started an affair meets with me to discuss getting a divorce, I immediately advise her or him to stop the other relationship. This often goes over like a lead balloon with my client or prospective client, and much too often he or she doesn’t take my advice. This is where things tend to go all wrong…
I ask every client to tell me what their goals are for their divorce. Pretty much every client I meet with states two primary goals (in addition to many smaller goals)— 1) to have a quick divorce 2) which doesn’t cost a fortune. They are always very clear about this. But when I advise a client having an affair to stop it immediately, they either say that they don’t want to stop it, can’t stop it, or argue that my advice is not necessary for their situation. Then I immediately tell them that continuing the affair creates at least a 90% chance of having a very long and expensive divorce (the opposite of their primary goals). At that point, most of them change the subject, and very few of my clients (at least recently) seem to be willing to take that advice. I even offer to give them names and contact info for prior clients (who have given permission, of course) to ask them what the consequences were of not taking my advice on this. No one has taken me up on that!
So, you may be wondering what the big deal is. Is it because judges will punish someone who has an affair? No, it’s not. This is for two reasons: first, less than 5% of all divorces end up in front of a judge. Second, in most counties in Texas, especially urban areas like the DFW Metroplex, judges tend not to make any specific rulings in a divorce based on a party having an affair. The theory on this is that the judges hear a lot of horrible things on a daily basis: child or spousal physical abuse, child sexual abuse, extensive use of pornography, spouse swapping, unusual consensual sexual behaviors, etc. They hear it all, and a lot of it. And they see adultery in almost every divorce that comes before them. So, when a party to a divorce is rightly upset and offended by their spouse having sex with someone else, the judges tend to be a bit jaded and inoculated to the “run of the mill” affair.
Many of you are saying “Really!?” “How can this be possible?!” Or “I’ve heard of other divorces resulting in a large disproportionate division of assets in favor of the spouse who didn’t have an affair.” Well, first, don’t believe all you hear. I hear these stories too, and when I dig a bit to hear what actually happened, there is usually much more to the story. Second, judges do sometimes punish someone for an affair, but it’s usually a small part of the reason for the result. Third, if you’re learning about these results online (or on TV), realize that the laws and culture related to these issues are very different from state to state and from county to county. So, pay attention to where the case reported was heard.
Can judges legally punish someone for an affair? Yes, they can. In Texas, a judge is to divide assets in a “just and right manner.” Note that this does not say 50-50, as many folks assume. So, for what reasons can a judge order a disproportionate division? There is a number listed in the case law in Texas, but one of them is adultery. However, even though it is available to judges (and they will use it in extreme fact situations), for the reasons listed above, they will very rarely order a disproportionate division based on the affair.
What about children and custody issues? Many parties to divorce who are on the innocent end of a spouse’s affair believe that this should win a custody case. Again, an affair generally has no impact on custody. Judges look at the relationship between each parent and the children and base decisions on which parent the judge believes is most focused on the children’s best interest. If the affair has had no or little impact on the children, there will generally be no impact on the custody decisions. This is hugely disappointing for many mothers whose husband had an affair, or fathers whose wife had an affair (in fact, many fathers assume that when mom had an affair, they will automatically receive custody of the children, which is not the case). Of course, if the new partner is dangerous or potentially harmful to the children, that will have an impact.
While there is often little to no impact on a fully litigated divorce (other than the costs of litigation, etc.) of an affair since most divorces are settled outside of trial in some process, and the existence of the affair creates a good deal of emotional upheaval (thereby costing time and money), we strongly advise our clients to either end or not start, another relationship until their divorce is final.
About the Author
Larry Hance is managing partner and founder of the Dallas law firm Hance Law Group. With more than 35 years of experience in family law, Mr. Hance uses his experience with the legal system, judges, and other lawyers to help clients achieve the best possible results.