Saying “I want a divorce,” and physically moving out does not change anything as far as the law is concerned. The date of separation does not hold much importance. Your community estate continues to accumulate while your divorce case pends, so until the judge decrees the divorce you are still legally spouses. Even though you and your spouse may have declared to each other that you aren’t bound by those promises you made anymore, as far as the law is concerned you are still married, and you are not free to engage in relationships outside your marriage without it having a consequence.
The consequence of adultery, which is what that would be at that stage, can be that the court can take that into consideration in dividing community property. Adultery is what we refer to as a “fault” ground of divorce, as opposed to “no fault.” We do still have fault grounds in Texas, and people tend to consider bringing up those grounds if they think it’s going to help them on their property divisions. There are a lot of reasons to think hard before you get into that kind of fight. You think about it, you think you’re going to do that, but sometimes there are reasons not to. There’s a lot to think through on how you handle your divorce.
How seriously do judges now take adultery into consideration? Is it going to be the vengeance piece that some people are looking for?
It is much more common now, and people are much quicker to leave a relationship. If you have separated and you’ve declared to the other spouse that you’re going to get a divorce, there is a break there that, mentally, people may not weigh infidelity as heavily as they would have otherwise. It’s almost become a societal norm. The judges may not give adultery following a separation that much affect, or even adultery that occurred before separation and might have brought about the dissolution of the marriage.
I think what matters more would be the extent to which a person is deliberately, or callously trying to hurt or humiliate their spouse. I can’t imagine that our judges would ignore that. Don’t parade your new girlfriend around the country club. It may be okay these days to have a girlfriend, but be discrete about it and in my experience, it’s not likely to be a source of punishment from the court.
Finalizing the divorce means I’ll never have to see my ex again… Right?
I’m sure there are a lot of people thinking they’re going to have a lot of relief from that, but as a practical matter, certainly if you have children, nothing could be further from the truth. For the sake of your children you want to see your “ex” again and you want that relationship to be a good one. Your kids deserve two parents, whether those parents can live together or not. And they deserve to have parents who try their best not to fight. Nobody’s ever going to be happy all the time, but you can sure make life a lot more pleasant for your son or daughter if you act like the adult, instead of expecting your child to accept petty or childish behavior on your part.
Even when the children are grown, there will be family events that you’re both going to need to be present for. There will be marriages, graduations, grandchildren; lots of happy things will happen in the future that you both want to be able to enjoy. Your child is not going to be able to enjoy these things if their parents are fighting. Your kids deserve better, so start acting better. The best thing you can do for your family is to figure out how to get along well enough, be comfortable enough, to get through – even enjoy – those happy events.