The impact of adultery on child custody rulings

Again, the precise impact depends on the preferences of your judge and the facts of the adultery, but judges will generally prefer to award custody to the spouse who did not commit adultery. The important factor is often the degree to which the spouse committing adultery exposed the children to the affair. If you can show that your spouse had other partners around your children, your case for custody will be stronger than your spouse’s. Likewise, you improve your chances if you can show that your spouse used family money to fund his or her adultery.

On the other hand, in the absence of some impact of the adultery on your and your spouse’s children, adultery may not have much of an impact at all on child custody. Judges often find that, just because a person was not the best of spouses, he or she may still be a good parent, and the child’s interests are the primary concern when determining child custody. If the adultery occurred as a result of some other behavior that led to the divorce (abuse, for example), the adultery will also not have much of an impact on child custody.

Have you recently been involved in a child custody determination? What factors played an important role for your judge?

John K. Grubb & Associates, P.C. – Houston divorce lawyers

Proving fault during your divorce case

The grounds in Texas for a fault divorce are adultery, cruel treatment, abandonment, incarceration, confinement to a mental hospital, or living apart for at least three years. As you might expect, if you allege fault when you file for divorce, your case will likely go much less than smoothly than if you and your spouse filed for a no-fault divorce. This is because you have to prove the fault in court.

Consider the case of having to prove adultery on the part of your spouse. You need to have more than suspicions or clues of adultery because you will have to convince a judge that your spouse actually committed the adultery. Proving the adultery can be time consuming and expensive if you do not have outright evidence of it.

If you do need to put in some work in order to prove adultery, you and your attorney should weigh the costs and benefits of proving fault versus the impact the fault will have on your divorce decree. Texas is a community property state, meaning that property that a couple acquires during the course of their marriage is presumed to belong to both of them. If you prove fault, this can result in a financial settlement tilted in favor of the spouse who did not commit adultery. But, your case ultimately depends on the judge before whom you and your spouse find yourselves. Some judges may be more forgiving towards adultery, and the ultimate impact on your divorce settlement could be little.

Have you been involved in a fault divorce case? How difficult did you find the process of proving fault?

John K. Grubb & Associates, P.C. – Houston divorce attorneys

• Communication problems
• Financial issues
• Infidelity
• Substance abuse problems
• Intimacy problems
• Mid-life crises

Of course, many of the factors blend into one another. For example, communication problems between spouses tend to make their financial life worse, since finances have such a big impact on how the couple lives their lives. The reason for the divorce is generally not so important today, but spouses still have the option of proving fault if they opt for a fault divorce.

Divorce – does fault matter?

These days, fault does not usually matter, but this is a relatively new development in family law. Prior to the 1970s, when a couple divorced, one spouse had to allege fault on the part of the other spouse – the commission of a crime or an act of adultery, for instance. These fault requirements often made divorce difficult, as it was subject to strict evidentiary requirements. In the absence of any evidence of fault, a couple’s only recourse was to separate and remain unable to legally remarry.

Today, all states permit no-fault divorce. In the summer of 2010, New York became the last state to adopt it; prior to then, many married couples avoided divorcing in New York due to the strict legal requirements of having to prove fault for a divorce. Now that all states permit no-fault divorce, married couples can divorce without having to prove that one spouse is to blame. They can divorce on no-fault grounds like incompatibility or irreconcilable differences.

Even though no-fault divorces are available throughout the country, divorces where one spouse claims the other is at fault are still an option, including in Texas. Later this week, we will go into the details about one particular cause of divorce – adultery – and how that can impact a divorce and child custody.

Have you been involved in a divorce case involving fault? What was your experience?

John K. Grubb & Associates, P.C. – Houston divorce lawyers

Avoiding a contested divorce is up to the two spouses. Once divorce proceedings have begun, this is a sign that the two spouses consider their marriage over, and their priority should be on moving on as smoothly as possible and providing the best possible environment for their children, if they have any. Work with your attorney, your spouse and your spouse’s attorney early in the process on the big issues of the divorce – property settlement, child support and spousal support. The more you and your spouse work together, the less likely you are to surprise each other. Surprises resulting from a lack of communication can push one side into contesting the divorce.

An uncontested divorce has financial and emotional benefits for both sides. From the financial perspective, uncontested divorces are cheaper, since the spouses avoid a drawn out court case involving the gathering of evidence and an eventual trial.

For many couples, though, the emotional savings are worth far more than the financial ones. The longer the divorce plays out, the longer you remain emotionally invested in the case and the longer you remain in limbo with regards to important financial and life decisions. This eventually takes a toll on everyone involved.

Nevertheless, there are times when contesting a divorce is an appropriate. If your spouse files for divorce on false grounds, you may wish to contest the divorce. Or, if your spouse maintains unreasonable positions on property settlement or child custody, you may have no choice but to proceed to trial.

Have you recently gone through a contested divorce? What were the areas on which you and your spouse found it difficult to find a common ground?

John K. Grubb & Associates, P.C. – Houston divorce attorneys

What is a common law marriage?

In order to common law married, a man and a woman have to meet three requirements in Texas:

• They have to agree to be married
• They have to hold themselves out as married (for example, introduce each other as husband and wife, file joint taxes, or the woman taking the man’s last name)
• They have to live together in Texas husband and wife

The requirements are simple, but they have to be met in order to qualify a couple as common law married. In other words, just living together or having a child together do not change a relationship into a common law marriage. Children or the length of the relationship do not factor into the determination.

How common law couples divorce

Once common law married, the marriage is the same as if the couple had gone through a formal ceremony. Other states will recognize the marriage as a regular one. If the couple wishes to divorce, they have to go through the formal divorce proceedings, regardless of whether they married via a formal ceremony or the common law. There is no common law divorce.

Under Texas law, if you are involved in a common law marriage and you split up, you have up to two years after the separation to file a legal action to prove that you were common law married. This can be helpful if your partner denies the existence of the marriage, which prevents the division of property that occurs at all divorce proceedings.

Do you have any experience dealing with common law marriage?

John K. Grubb & Associates, P.C. – Houston divorce lawyers

The appeal process is an entirely new ball game, so to speak. Indeed many attorneys work exclusively doing appeals because of the different laws, rules and procedures that govern the 14 appellate courts in Texas and its Supreme Court. If you have a reason to appeal your original divorce decree, act quickly, as you typically need to file your appeal within 30 days of the trial judge’s signing your original decree.

Winning an appeal is difficult. You have to show errors at the lower level, and even when you can show an error, appellate judges can overlook the error if it was harmless. Their preference is to defer to the judgment of the trial judge, who had the chance to hear all of the evidence.

All of this points to an important lesson for couples undergoing a divorce – do not expect to be able to change things after your divorce is final. If you want to change something, work with your attorney to fight for it when you are negotiating your divorce settlement. Once your divorce becomes final, it is likely too late.

Have you had to make changes to your divorce decree or child custody arrangement after it became final? What was your experience?

John K. Grubb & Associates, P.C. – Houston divorce attorneys

While Pitt may have caved to marriage pressure from his and Jolie’s children, his support of same-sex marriage has not changed, as he continues to campaign for sex-sex marriage throughout the country. The past year has seen a number of developments in this area of family law, and several important cases are currently spending in courts throughout the country, including here in Texas, where the Supreme Court will rule on two cases in the coming months that will determine whether Texas recognizes same-sex divorce.

Several of the developments in same-sex family law in recent months include the following:

• Similar to cases before the Texas Supreme Court, Maryland’s highest court will be ruling on a case of whether a same-sex couple can divorce in Maryland, where same-sex marriage is not legal
• The Maryland case will only have a short-term impact, since on January 1, 2013, Maryland will officially recognize same-sex marriages
• Last summer, Wyoming’s Supreme Court ruled that sex-sex couples lawfully married in another state can receive a divorce from a Wyoming court, even though Wyoming does not recognize same-sex marriages
• This coming summer, Washington is set to implement a law that permits same-sex marriage in the state
• In the summer of 2011, New York began granting same-sex marriages

What problems have you faced pertaining to same-sex marriage or divorce law?

John K. Grubb & Associates, P.C. – Houston divorce lawyers

Jolie and Pitt prenup is likely

In short, each is worth a lot of money. Unlike some celebrity marriages, theirs is not one where it is clear that one spouse is worth substantially more than the other and that a prenuptial agreement is something that the wealthier spouse may want to consider. But given the sheer wealth involved (nearly a quarter of a billion dollars) and the complex nature of their family – three adopted children and three natural children – Jolie and Pitt will almost assuredly use a prenup.

Over $250 million at stake

A prenup will let the two take care of a number of issues they could face if they divorce down the line. For one, it lets them handle their finances while they are happiest; Hollywood divorces are rarely pleasant and straightforward, which makes it the worst time to be fighting over hundreds of millions of dollars. They could opt for a prenup as simple as keeping their film earnings and proceeds from producing or directing separate.

Prenups and children

Likewise, it is a smart move to decide how to care for their six children before a divorce. Both are officially adoptive parents of their three adopted children (Jolie adopted them first, but then Pitt officially adopted them several months to a year later). You cannot generally include too many details about child support or child custody in your prenup, as a prenup is geared more towards the two getting married, but you can agree to some terms, particularly if they are more generous than they might be under a later court ruling.

Did you use a prenuptial agreement for your marriage? What sorts of matters were important for you to include?

John K. Grubb & Associates, P.C. – Houston divorce attorneys

Couples who enter into marriage with adopted children

The Jolie-Pitt family stands at eight. In addition to the two celebrity parents, there are also six children – 10-year-old Maddox, 8-year-old Pax, 7-year-old Zahara, 5-year-old Shiloh and 3-year-old twins Knox and Vivienne. The first three are adopted children, and the latter three are children that Jolie and Pitt had together

With adopted children, the parent who adopted them has all the legal rights that accompany parenthood. When that parent (Jolie in this case) then decides to marry, normally, the parent’s adopted children would not become children of the spouse. This is often the case when a parent remarries and the children now have a stepparent. Without the other spouse formally adopting the children, he or she has no legal rights regarding the children.

Pitt, however, avoided this dilemma by adopting Jolie’s three adopted children. He did so within a year of Jolie’s adoptions. As such, both Jolie and Pitt are the legal parents of Maddox, Pax and Zahara. If he had not done so, Pitt would have no legal right to make decisions regarding the children or to demand child custody if the two split up down the line.

Are you an adoptive parent who later married? What legal concerns did you face?

John K. Grubb & Associates, P.C. – Houston divorce lawyers

Even though both spouses will have a say in decisions affecting their child’s life, the court will still have to make a decision regarding physical custody, and the preference remains for sole physical custody (that is, one parent will still be the custodial parent with whom the child lives most of the time).

Who gets sole physical custody of a child – mother or father?

Even though sole physical custody more often goes to a child’s mother, there is no law requiring this. In fact, the Texas Family Code specifically mentions that sex is not one of the factors for a judge to take into consideration when determining physical custody. The Texas Supreme Court has commented that there is no reason why a father should have to meet a higher burden of proof just because he is male. At least in theory, then, the idea is that a child’s best interests are priority number one, and the judge should make a custody determination without regard to a parent’s sex.

Nevertheless, many fathers only receive physical custody when the mothers of their child have been involved in some sort of illegal activity or have been abusing alcohol or drugs. In the absence of this type of conduct, it can be an uphill battle for fathers who, despite the Supreme Court’s words in the prior paragraph, do usually have to put on a more convincing case in order to persuade a judge to award them sole physical custody.

This is where a father should work closely with his attorney in pleading his case in a Texas family law court. Fathers need to marshal all of the evidence they can to show that they are the ones who should be responsible for raising their child.

Are you a father who has been involved in a dispute over child custody? Did you face an uphill battle to win physical custody of your children?

John K. Grubb & Associates, P.C. – Houston divorce attorneys