In Texas, if you are ready to get divorced, you have the option to file on either fault-based or no-fault grounds. Cheating is considered a form of “marital fault” in Texas, and Section 6.003 of the Texas Family Code provides that, “[t]he court may grant a divorce in favor of one spouse if the other spouse has committed adultery.”

So, if your spouse cheated on you, should you file for a fault-based divorce under Section 6.003, or should you still file for a no-fault divorce under Section 6.001 (which provides, “the court may grant a divorce without regard to fault if the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation”)? Here are some preliminary factors to consider:

Should You File for a Fault-Based Divorce in Texas?

1. Fault-Based Divorces Are Usually More Contentious

Fault-based divorces tend to be more-contentious than no-fault divorces. While spouses can still run into disagreements regarding property division, child custody (technically called “conservatorship” in Texas) and financial support in no-fault divorces, when one spouse accuses the other of fault, the potential for disputes can reach a new level.

2. You Do Not Have to File on Fault-Based Grounds

Even if you have grounds to file for a fault-based divorce, this does not mean that you have to file under Section 6.003. If the potential benefits of filing for a fault-based divorce are outweighed by the potential drawbacks, you can still file on no-fault grounds.

3. If You Are Accusing Your Spouse of Adultery, You Will Need to Be Able to Prove It

If you file for divorce based upon your spouse’s adultery, you will need to be able to prove it. This can lead to additional costs and delays which may or may not be worth it depending on the other circumstances involved in your divorce.

There are a number of potential ways to prove adultery; but, even if you have access to information yourself (i.e. if you know your spouse’s email password or phone passcode), gathering this information is still a task for your attorney and/or a private investigator. If necessary, your attorney can also subpoena phone records and other documents, and your private investigator can attempt to obtain photo or video evidence of your spouse in the act.

4. You May Be Able to Secure Appropriate Remedies Without Filing for a Fault-Based Divorce

Even if you do not file for a fault-based divorce, you may still be able to secure appropriate remedies for your spouse’s cheating during your divorce. For example, one of the most-common divorce-related issues associated with adultery is dissipation of assets – basically, your spouse spending money on his or her affair. If you can prove that your spouse cheated (or your spouse admits it), then you should be entitled to recover your share of any dissipated assets from your spouse’s share of your community property even if you do not file for divorce on fault-based grounds.

Speak With a Divorce Lawyer in McKinney, TX

For more information, we encourage you to contact us for a free, no-obligation consultation. To speak with one of our McKinney divorce lawyers in confidence, please call 214-726-1450 or request an appointment online today.