How Adultery and Pregnancy Affects a Divorce Case in Texas

You may have noticed that adultery has snaked its way and somewhat settled itself into the society today. There are definitely more cases of adultery nowadays than ten years ago.

Statistics suggest that this is somewhat related to people becoming less religious. Media such as movies and television programs are not helping either – they just help people become more comfortable in justifying adultery and decisions related to infidelity.

Technology is also a factor because it makes adultery a lot easier. This is also one of the major reasons why the number of divorce cases and broken families are steadily on the rise.

This post is not meant to be judgmental or offensive. Instead, it is just meant to discuss the relevant issues surrounding divorces that stem from adultery. This is a question that many clients ask: “How will adultery impact my divorce case?”

Whether you are the one who cheated or the one who has been cheated on, there is a lot of information you need to know as you go down the path to your divorce. There will also be a handful of things to consider if infidelity is what led you to pursue divorce.

The Big A

If adultery has influenced you to seek a divorce, it is a ‘fault’ ground for your case. In most states in the United States, you can actually get a divorce without any valid reason. This type of divorce is referred to as a no-fault divorce.  With adultery in the picture, your divorce case can also be filed on a “fault” ground as well, which can potentially have some relevance in how things are ultimately divided.

Adultery is when your spouse has engaged in sexual activity with another person during your marriage. Unfaithful thoughts and flirtations are not counted as adultery. It is natural for you to try to dig for proof when you suspect that your spouse is committing adultery. You will want to know the truth.

Actually, in order to bring adultery to court, you will really need to do a lot of digging because you will have to prove your allegations to the judge.

Proving adultery might prove to be tricky and challenging.

Proving Your Partner’s Infidelity

When you accuse your spouse of committing adultery and you want to use this as leverage in your divorce, you will need to present in court direct evidence of your spouse’s adulterous activities.

Photos and videos would suffice for this type of evidence. You can also submit indirect evidence to the court such as emails, letters, and credit card charges to prove your allegations.

If you go to court without clear evidence of your spouse’s adultery, it is highly likely that your allegations will be dismissed. Even if you hire an expert lawyer to assist you during the legal battle, it won’t be enough. It would be better for you to hire private investigators and detectives specializing in obtaining proof of adultery so that you will have solid evidence to present to the court.

Collecting Evidence

If you are already suspecting your spouse of infidelity but you don’t have the proof to show for it, it would be wise to keep your suspicions to yourself and secretly collect evidence without breaking the law.

You can record phone calls, collect text messages and card charges and obtain photos if possible. You can also use social media in revealing the adulterous affair.

It is not uncommon for an adulterous spouse to use social media to reach out to the other person. It might be helpful to present this type of evidence in court.

It is important to be quick and discreet about collecting evidence for the adultery because once your spouse realizes that you’re digging, he or she might destroy all evidence.

When you use adultery in a divorce case, it can impact the property distribution during the divorce – that is, if you can convince the judge of your spouse’s infidelity.

There is a chance that you will be given more than the typical 50% of the property incurred during your marriage. The key is in proving the adulterous act and your losses because of it.

Keep in mind though that proving your spouse’s infidelity in court will not automatically award you with the higher percentage of your marital properties. You need to convince the judge of how much you suffered and how much the adulterous affair has impacted you negatively.

When an Affair Results in Pregnancy

Getting a divorce when the wife pregnant is difficult in itself because there is a need to prepare for the child’s birth under uncertain conditions. The wife will for sure need a strong support system because and all the support she can get with all the changes that are coming her way. A divorce is a difficult thing to deal with and to deal with it while pregnant would be tough.

It would be even worse if the wife is pregnant but the father of the child is not the husband, but another man.

Understanding the Texas Family Code

In order to know how the pregnancy would affect the divorce, the couple needs to learn at least a bit about the legalities.

When a couple is married and the wife gets pregnant, the law would automatically presume that the child is the husband’s child. This is the case if the child is born during the marriage, and this even applies if the child is born within 300 days from the time the divorce has been finalized.

The legal presumption would always be that the father of the child is the woman’s husband.

All issues related to this matter is covered by the Texas Family Code. In case the father of the child is not the spouse and the couple gets a divorce before or after the child is born, they will need to establish parentage. Since the law would automatically declare the spouse or ex-husband as the legal father of the child, either party need to file a lawsuit to prove otherwise.

There is also a time limit in determining parentage. If you have paternity issues, you should not wait ten years before filing a lawsuit to determine who the father of the child is. This needs to be done within four years from the date of birth of the child if you want the court to deal with this issue.

This four-year rule has its exceptions though. One is when the husband (or ex-husband) was not able to file a lawsuit within the four-year limit because he was made to believe the child is his. Another exception is when the ex-spouse and the mother of the child have never lived together during the period when the child was conceived.

To make things easier at court, you should go for the second exception to the rule. You should prove to the judge that you were not together with your now ex-spouse and you’ve never had any sexual relations during the time the child was conceived. Otherwise, it can be quite difficult to overturn the presumption that your husband is the biological father of the child.

Getting the Real Father Involved

You can also give an opportunity for the biological father of the child to present himself at court. When you and your spouse would include the biological father of the child in court, you would then be able to request a DNA test to determine clearly who the biological father of the child is.

A divorce where the wife is pregnant with another man’s child can be complicated. Especially when the child is born before the divorce is finalized, the husband can easily assert the infidelity as the fault for divorce and the child can be used as evidence to prove the husband’s point.

If you are involved in any scenario similar to this, it would be best to hire an expert family law attorney and file for a lawsuit to establish paternity as soon as possible. This can help resolve the issue quickly. This also applies when you are dealing with  a divorce which grounds involve adultery.

Here are some articles that might also be useful in your divorce case:

Busting Myths and Rumors About Child Support in Texas

What You Need To Know About Conservatorship in Texas

Hacks on Hiring an Experienced Divorce Attorney in Texas

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Mr. Hutton is a Divorce and Custody Lawyer based out of Round Rock, TX. His background is with child psychology at Arizona State University where he received a B.S. in 2006, and he continued this by working with the Children’s Right’s Clinic at the University of Texas School of Law where he received his J.D. in 2009. Throughout his practice, he has been a strong proponent of utilizing modern technology to improve his practice and the representation of his clients. He currently is the technology chair of CAFA of Travis County and is committed to improving and modernizing the practice of law in Texas. If you have any questions you can contact him at