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How do I prove adultery in my divorce case?

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With Texas being a no-fault divorce state, couples here can end their marriages without proving infidelity. And yet, in a number of cases when infidelity figures into the end of the marriage, the person who has been cheated on wants to bring it into the equation. Does it really make a difference, though? And, if so, how should one go about proving it?

First of all, though it's not needed to actually make the divorce happen, Texas law does allow for a disproportionate share of the estate to be awarded to the wronged party if adultery is proven. However, adultery is very difficult to prove. Additionally, you have a better chance of winning a disproportionate share if it can be proven that community property was being used in conjunction with the affair.

For example, let's say a husband uses money from a shared savings account to pay for a secret vacation with his mistress. That could move a judge to award more of the estate to the wife than the standard 50/50. Additionally, you also might stand to gain some reimbursement from the money spent. There are other things related to an affair that might sway a judge as well - for example, if a husband has an affair and gives his wife an STD, which could trigger an additional cause of action (or another case) for damages. Judges would also be more apt to give a disproportionate share to the other spouse, if something else related to the cheating and divorce creates a hardship for the children. It is, however, ultimately up to the judge's discretion, and in many cases, the mere presence of adultery isn't enough to move the needle.

While it's not needed to determine whether a couple can get divorced, it is a factor in spousal maintenance determinations as well, but Texas requires a couple to be married ten years (unless there's family violence involved or some other mitigating factor) before spousal maintenance can be awarded.

If you do attempt to prove it, you should know what is and what is not admissible in court. Texas law allows the recording of phone or live conversations to go forward as long as one party consents to the recording. So, if you know that the recording is taking place, but your spouse doesn't, it's acceptable to use as evidence, because presumably you gave yourself permission to record. That's different from wiretapping, in which a third party is able to record a conversation between two people without either of them being aware.

It's also possible to admit a text exchange or an email exchange as evidence, so getting an admission of adultery through either of those avenues is an option as well.

It gets trickier when it comes to using email from the party accused of infidelity as proof. It's illegal to hack into your spouse's email account, so even if you find exchanges that your spouse made with a lover insinuating an adulterous relationship, you have to establish that you had legal access to those emails. And even if you do have your spouse's password, or your spouse left the computer on and the email account open, your spouse could deny that in court and throw the legality of those acquired emails into doubt.

Ultimately, it's up to you and your lawyer to determine if it's worth the time and the energy that it will take to prove adultery, and if you determine it is, then to go about it in a way that will make your findings admissible in court. But make sure you discuss it with your lawyer before you set off to be your own private eye - you don't want to do anything that might interfere with the divorce process needlessly.

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