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With the recent release of the data hacked from the website Ashley Madison (the online dating service for married people seeking an affair), it might be worth reviewing adultery and divorce under Texas law. It should be noted at the outset that the Family Code provides for a no-fault divorce. See Tex. Fam. Code § 6.001. A couple may get divorced “without regard to fault if the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.” Id. However, an aggrieved spouse may seek a divorce based on one of the Code’s fault-based grounds and seek to have the court award him or her a greater proportion of the marital estate because of the ex-spouse’s fault in the breakup of the marriage. See generally Young v. Young, 609 S.W.2d 758, 762 (Tex. 1980) (holding that fault in the breakup of the marriage “may be a consideration to be weighed in the division of property.”) The Court noted that this consideration of fault does not “require a trial judge to assess each and every bicker, nag and pout.” Id. Rather, cruelty, adultery, and desertion and the types of fault a court will consider, and even with this fault, a disproportionate share of the parties’ marital estate is not guaranteed to the aggrieved spouse. Id.
If a spouse decides he or she does want a divorce on the grounds of adultery, the issue obviously becomes how to prove it. In Dzierwa v. Cerda, No. 04-13-00407-CV (Tex. App.—San Antonio, Aug. 6, 2014, no pet.) (not designated for publication), the wife filed for both a no-fault divorce a divorce on fault grounds—namely adultery. She testified that she believed and knew her husband was seeing another woman and had proof in his emails, though the emails themselves were not introduced at trial. The trial court found that the husband had committed adultery and dissolved the marriage on that ground. Yet the husband appealed, arguing that there was insufficient evidence that he had an affair.
The appellate court agreed with the husband and found that “[the wife’s] testimony does not rise above the level of mere suggestion or innuendo that [the husband] committed adultery.” Id. An allegation that the husband was “seeing” another woman was not “substantive or probative evidence of actual sexual intercourse with another woman”—the definition of adultery—nor was a belief that he was having an affair “probative evidence of adultery.” Id. Adultery may not be proven by “mere suggestion or innuendo.” Id.
Because there was insufficient evidence to prove that the husband had an affair—and that was the only ground the divorce was granted on—the appellate court was forced to reverse its judgment of divorce and send the couple back to court. Thus, the lesson is don’t allege adultery unless you can prove it.
Which brings me back to Ashley Madison. While it might be tempting to comb through its database to see if you can find your husband’s name, it’s unlikely that an account will be evidence of an affair. Only around 15% of the website’s accounts were marked female, and of those, it is estimated that zero percent were active. See Annalee Newitz, Almost None of the Women in the Ashley Madison Database Ever Used the Site, Gizmodo, Aug. 26, 2015, available at http://gizmodo.com/almost-none-of-the-women-in-the-ashley-madison-database-1725558944. According to Newitz, “it’s hard to deny that the overwhelming majority of men using Ashley Madison weren’t having affairs. They were paying for a fantasy.” Id. This doesn’t mean you should stand by your man if you found him surfing Ashley Madison. It’s just a word of caution when selecting how to get your divorce.
Stacey Holley Valdez Attorney Stacey Holley Valdez is among the one percent of attorneys in Texas to have achieved Board Certification in the practice area of family law. This certification is awarded to only those attorneys who demonstrate significant experience in family law, the highest ethical principles, and a comm… Read More 
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