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Will the Judge Let It Slide if I’ve Got a Honey on the Side?

NO! In Texas, adultery can be considered by the trial court when determining what assets are awarded to each spouse upon divorce. In “no fault” divorces, Texas trial courts must make a “just and right division” of the assets in the community property estate. Because “no fault” has been alleged by either spouse, trial courts are less likely to consider a spouse’s history of adultery when making a just and right division. However, some Texas courts still take a spouse’s adulterous behavior under consideration in a no-fault divorce. This means that even in a case where adultery hasn’t been alleged as a cause of the divorce, the trial court could still use a spouse’s adultery to limit what assets he or she receives. In a fault-based divorce, or a divorce caused by a certain spouse’s actions (such as adultery), a history of adultery will absolutely be considered by the trial court in determining which spouse receives which marital assets. Finally, a word of caution if you decide to give your mistress or paramour a gift out of the community estate without telling your (then) spouse. Gifts given to someone that are paid for with community property, without the other spouse’s consent, can sometimes be recovered by the aggrieved spouse upon divorce. Depending on the facts, an aggrieved spouse can recover from the ex-spouse or from the girlfriend/boyfriend of the ex-spouse, making it a safer idea to not dabble in gift giving to non-marital sweeties until after the divorce is final.

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