Ed Chernoff

Taking Them to the Cleaners

With rare exception, our family law cases address generally three areas. The first is kids. Second is pre-divorce maintenance. And finally, we have property. From a legal standpoint, divorce is really all about separating property and debt. It is dissolution of a partnership, pure and simple. Except that in the family context, the Court has a very general rule it is required to follow to make its determination of who gets what. The split of assets and debt must be “just and right”, which is another way of saying “equitable”.

“Equitable” doesn’t mean half and half. In fact, that would often be impossible since family assets are usually in something other than cash holdings. An equitable distribution is going to take into consideration the relative earning powers of the spouses, the needs of children, and the characterization of the property.

The Court can also take into consideration the parties relative “fault” in the divorce. This is often a gray area, and one of the most contentious and confusing areas for our clients. Many a time, a client will come in and make a request that we punish the other spouse for his/her bad behavior during the marriage. Often, we have to talk our clients down off the ledge.

A spouse can do quite a lot to screw up an otherwise viable and healthy marriage. One of the most prevalent is adultery. The Texas Family Code is pretty specific about adultery. It can be used as a reason for divorce. The Court, in determining a property split, can also consider it. Many clients want the Court to punish their philandering spouse by taking away all of their community property rights.

No doubt about it. Most family Judges don’t like the actions of a cheating spouse. Especially when there are children involved. However, in our experience adultery, no matter how obvious, is not normally going to result in an exceptionally dramatic split in community property. Most Courts don’t seem as impressed with adultery as they once were. My personal opinion is that there’s too much cheating going on! More than half of the divorces seem to carry the baggage of adultery with it. The Courts might be desensitized.

That’s not to say that a good lawyer can’t provide information to the Court that turns the tide in a fight over community property. It’s just that one shouldn’t expect to “take ’em to the cleaners” on an allegation of adultery alone. However, there are some things a spouse can do to another that can put most of their share of community property in jeopardy. That will be the subject of another post.