We often are asked if fault such as infidelity or domestic violence can affect the outcome of a divorce. And if so, how?

Though Texas is a community property state, it is not a 50/50 division state. The manner in which property is divided is left to the discretion of the court. The court has the authority to award one side more or less, depending on various factors, including, but not limited to, infidelity or cruelty, the earning power of the spouses, and the role of primary caregiver of the child or children.

In Texas adultery is not a crime. You cannot be prosecuted for adultery; however, adultery can affect custody issues and issues such as spousal support and division of property. The court will definitely consider adultery and its repercussions.

Regarding custody, the court will examine the extent of the adultery and how it has affected the child. Since custody is determined on the basis of the child’s best interest, the court will focus on the way the misconduct affects the child.

The court will look into the following factors:

• Whether the physical, psychological, or emotional needs and development of the child will benefit from joint custody
• The ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child’s best interest
• Whether each parent can encourage and accept a positive relationship between the child and the other parent.
• Whether both parents participated in child rearing before filing for divorce
• How close to each other the parents live
• The child’s preference, if the child is age 12 or older
• Any other relevant factors