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Evidence of Adultery in Texas Divorce

A Texas divorce may be granted in favor of one spouse if the other committed adultery.  Adultery occurs when one spouse has voluntary sexual intercourse with someone other than their spouse.  Adultery may occur after separation.  Suggestion and innuendo are insufficient to support a finding of adultery, but the finding can be based on circumstantial evidence.  One recent case addressed sufficiency of evidence for a finding of adultery.

The couple married in 1996 in India and had a daughter in the following year.  The husband moved to the U.S. in 2003, and his wife and daughter followed in 2004.  In 2006, however, the wife and daughter moved back to India.  The wife testified that she had not stayed in India voluntarily, but she had to remain because her husband canceled her plane ticket and her visa.  The husband agreed to help the daughter come back to the U.S. for college in 2013, and she insisted her mother join her.

The husband filed for divorce in 2015.  The trial court granted the divorce on the ground of adultery.  The wife appealed both the finding of adultery and the property division.   The appeals court had to determine whether the trial court abused its discretion by making a decision that was not supported by sufficient legal or factual evidence.

The wife argued there was not sufficient evidence to support the adultery finding.  The husband presented evidence of adultery with two different men.  The husband testified that his wife had lived with another man for two years while she was in India.  The wife denied living with the man.  When asked if she had a sexual relationship with him, she responded that she had a “friendship” with him. She also stated that “there was some intimacy,” but she denied it was a “full-blown affair.”  The wife argued her testimony only established a friendship instead of sexual intercourse.  The appeals court, however, noted that “intimate” is a euphemism for sexual intercourse and is frequently seen in Texas case law in that context.  The appeals court further found that it was the trial court’s function as the trier of fact to determine if the wife meant that she had a deep friendship or a sexual relationship with the man.  It was within the trial court’s discretion to find the wife had a sexual relationship with the man.

The second instance occurred while the wife was living with her husband in the U.S.  She lived upstairs and the husband downstairs at the time.  She invited a man to stay upstairs, and the husband testified that he heard what sounded like his wife and the man having sex.  The wife, however, testified she did not have sex or an intimate relationship with the man.

The appeals court distinguished this case from those in which a trial court’s finding of adultery was based on conjecture or speculation.  The appeals court concluded the trial court’s adultery finding was supported by the wife’s testimony she had an intimate relationship with the man in India as well as the husband’s testimony he heard what he thought was his wife and a man having sex.

The appeals court also rejected the wife’s argument that the adultery testimony constituted “trial by ambush.”

The wife also argued the court abused its discretion in the property division.  The appeals court found, however, that the wife received nearly $200,000 more of the net value of the marital estate than her husband.  Additionally, the court ordered the husband to pay spousal support for 24 months.

The wife argued the court had not accounted for transfers of assets by the husband to his friends and family.  She presented evidence that he had transferred more than $131,000 to people in India, and she estimated he had sent a total of more than $368,000 without her knowledge.  The husband testified that he had sent money to support his family in India and that he had also given money to his wife’s family and friends.  The appeals court found that even if the wife were correct that the husband’s actions constituted a fraud on the community, her award was already greater than it would be if the court made the correction.

The wife also argued that the trial court had not accounted for significant community debts resulting from the husband’s actions.  The appeals court noted the trial court had ordered the wife to pay the only car loan in evidence.  It also ordered the husband to pay any debts in his name.  The wife testified she borrowed money from her mother for repairs to the home in India, but she did not provide documentation of the loan.  The appeals court found the trial court was within its discretion to judge the witnesses’ credibility and not believe the wife.

The appeals court found the wife failed to show the division of property had not been just and right.  She had received more than half the net value of the marital estate, even if the court accounted for the husband sending money back to India.

If you are facing a divorce, an experienced Texas divorce attorney can fight for you.  Call McClure Law Group at 214.692.8200.

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