Should I File for Fault-Based or No-Fault Divorce?

By | Adultry, Divorce

For Galveston-area couples looking to get a divorce, it is not necessary to assign legal fault to either spouse. Texas law authorizes a judge to grant a divorce on the grounds of “insupportability,” which is just another way of saying no-fault divorce. However, a spouse may still seek divorce based on the other spouse’s fault, which includes grounds such as adultery.

Galveston Court Rejects Wife’s Adultery Allegations, Grants Divorce Based on “Insupportability”

However, a judge can still decide to award a no-fault divorce if the accusing spouse fails to support an adultery claim. This subject actually came up in a recent Galveston divorce case. The parties married in October 2011. They separated four years later. The wife sued the husband for divorce, on both the grounds of insupportability and adultery. In support of the latter, the wife testified that her husband made telephone calls and sent “love notes” and text messages to another woman “with whom [he] claimed to be in love.” The wife introduced evidence in the form of “photos of messages,” but otherwise offered no proof that her husband ever engaged in extramarital sexual relations with this other woman.

The husband denied committing adultery. He specifically testified that he never engaged in a “physical relationship” with the woman identified by the wife. The trial judge ultimately decided to grant the wife a divorce on no-fault grounds.

The wife appealed, arguing she was entitled to a fault-based divorce on the grounds of adultery. The Texas 14th District Court of Appeals affirmed the trial court. It noted the trial judge has the “discretion to choose between insupportability and fault-based reasons when deciding whether, and on which grounds, to grant a divorce.” And in this case, the judge did not abuse that discretion, given that the wife did not actually prove adultery.

Indeed, from a legal standpoint, adultery requires more than “suggestion and innuendo,” the Court of Appeals observed. The wife need not personally witness her husband having sex with another person. But there must still be some “direct or circumstantial evidence” to prove there was sexual intercourse–not simply an exchange of messages professing love. Furthermore, even if the wife had presented such evidence, the trial court could still have chosen to grant divorce solely on “insupportability” grounds.

Our Houston Divorce Lawyers Can Help You

The inherent difficulty of proving adultery–not to mention the emotional toll it can take on the parties and their families–often leads jilted spouses to seek a no-fault divorce instead. That’s not to say there aren’t good reasons to seek a fault-based divorce. If proven, adultery can affect how a Galveston judge divides the couple’s marital property or determines spousal maintenance. And there may be personal or cultural reasons for wanting to prove a spouse’s infidelity–in the case discussed above, the wife alleged she could not obtain a “religious divorce” unless her husband cheated on her.

Whatever your situation, before you head into court you should always consult with a qualified League City divorce attorney who can help you decide whether it is better to seek a fault-based or no-fault divorce. Contact the Law Offices of Tad Nelson & Associates at (281) 843-9776 if you need to speak with an attorney right away.


Can My Spouse’s Online Activities Prove Adultery?

By | Adultry, Divorce

Adultery can mean different things depending on the context. Psychologists often speak of “emotional adultery” when referring to spouses who carry out explicit relationships with non-marital partners over the Internet. While such emotional affairs “do not involve physical contact,” according to one expert, these extramarital activities can be “just as devastating to the family as a physical affair.”

But from a legal standpoint, “emotional adultery” is not the same thing as adultery. Texas courts have long said that when it comes to citing it as grounds for a fault-based divorce, adultery refers exclusively to the “voluntary sexual intercourse of a married person with one not the spouse.” While you do not necessarily have to catch your spouse “in the act” to prove adultery, you still need to offer the court direct or circumstantial evidence that proves intercourse likely took place. As a Texas appeals court observed in a 2009 adultery case, “clear and positive proof is necessary and mere suggestion and innuendo are insufficient.”

Following the “Digital Breadcrumbs”

With that in mind, there are cases where evidence of an online extramarital relationship may be used to help prove adultery. Your spouse’s emails, text messages, and social media posts may contain valuable information about who they are speaking or meeting with when you are not around. Also remember, we live in an age where people commonly record and publish their every action. Even if your spouse did not leave any “digital breadcrumbs” for you to follow, the person they are seeing may not be so careful. For that matter, a third party may have photographed or recorded your spouse at a public event where he or she was seen kissing or engaging sexual activity with someone else.

In addition to evidence of intimacy or sexual activity, your spouse’s online actions may also lead you to uncover financial evidence supporting the existence of an affair. Obviously, if you notice any unusual charges to your credit card, you should be concerned. But also consider more unconventional financial activities. For instance, is your spouse “investing” in cryptocurrencies such as Bitcoin? This can be a useful way of hiding assets from you–and sending money clandestinely to a secret lover.

Get Advice From a Qualified Galveston Divorce Lawyer

To reiterate a critical point, circumstantial evidence may not be enough to actually prove adultery in court. Merely hiding money from you or seeing someone without your knowledge does not always add up to sexual intercourse outside of marriage. And even if you think you have sufficient evidence to prove adultery, it may not be in your family’s best interest to make such allegations in open court. After all, Texas does recognize “no-fault” divorce, so you are not compelled to prove adultery in order to get out of a failed marriage.

On the other hand, proving your spouse’s adultery can work in your favor when it comes to the court dividing marital property or determining whether to award you alimony. This is why you should speak with a Galveston divorce attorney to discuss your options. Contact the Law Offices of Tad Nelson & Associates to schedule a consultation today.