Adultery, Abuse, Stalking & Addiction

Emotional abuse, physical violence, stalking, and illegal sharing or publication of nude photographs or sex videos are sad issues divorce attorneys frequently help their clients with. Mental health counseling for the victim is almost always necessary to gain the strength to fight back, the determination to stay apart from the abuser, and the answer for why the relationship happened in the first place. It is crucial that victims of abuse share the details with their divorce or child custody lawyer.

The most dangerous time for victims of domestic violence can be when they decide to leave the relationship, as the abusive partner may experience a loss of control over the victim. In most cases, individuals are advised to consult with an attorney before informing their abusive partner that they are contemplating ending the relationship. This enables them and their attorney to develop a safety plan for how and when they will leave. Victims will want to store important things with a trusted friend or relative such as copies of birth certificates, a list of account numbers, a spare set of car keys, a change of clothes for them and their children, and an additional cell phone or a list of important numbers from their cell phone should they need to make a speedy exit. Additionally, they should also send that trusted friend or relative any evidence of abuse such as photos, recordings, and text messages where the abusive partner has made threats, admitted to the abuse, or apologized for the abuse, in case the abusive partner destroys the victim’s cell phone before or when they are trying to leave.

Although this page focuses on domestic violence protective orders, victims of stalking, human trafficking, and sexual assault should also call the police and press criminal charges. You can call the National Domestic Violence Hotline at (800) 799-7233. They can help you to locate a shelter in your area and help you to develop a safety plan for removing yourself from a dangerous situation.

You may be entitled to a protective order if you have been the victim of family violence, sexual assault, human trafficking, or stalking. A family violence protective order is the most common type of protective order. An application for a family violence protective order may be filed in the county where the applicant resides, the county where the abuser resides, or any county in which the family violence occurred. After the application for the protective order is filed, a hearing will be held in front of a Judge. Your abuser will have to be given notice of the hearing and if he chooses to show up to the hearing, he or she will get an opportunity to tell the Judge his or her side of the story. You will also tell your side of the story. It will be helpful for your case for you to provide any photographs of injuries, audio or video recordings of the violence, medical records, police reports, court records, or witnesses. If the Judge finds that there has been domestic violence, he or she can order that you are entitled to a protective order for from two years to life depending on the circumstances. You can request help with obtaining a protective order from the District Attorney’s office in the county where you live, a private attorney, legal aid, or domestic violence programs and shelters in your area.

Oftentimes, the local district attorney or county attorney’s office will seek a protective order for violence victims at no cost. Victims can also hire a private lawyer to pursue a protective order. A protective order is a civil court order issued by a court to prevent continuing or threatened acts of family violence, dating violence, stalking, or sexual assault. Generally, a protective order is valid for up to two (2) years and is enforceable by law enforcement.

A protective order can order the abuser to:

• stay a specified distance, such as 200 yards or more, away from the addresses listed in the order, generally your home, school and work addresses;
• not commit or threaten to commit violence against you or members of your family;
• not threaten or harass you directly, or threaten or harass you through someone else;
• not contact you or communicate with you at all;
• not follow you (for Stalking Protective Orders only);
• not possess any weapons unless that person is a peace officer;
• not remove or harm pets or companion animals; and
• not remove children from your care.

People often use the terms “protective order” and “restraining order” interchangeably, but they’re actually different in Texas. A court may issue a protective order when individuals in a household are vulnerable to violence or the threat of violence. The following may request a protective order:

• A blood relative of the aggressor
• A household member of the aggressor (including children)
• A person who has had a dating relationship with the aggressor

In order to receive a personal protective order, the individual filing it must show proof that violence against them occurred or the threat of violence is imminent.

Protective orders serve the purpose for which they are named – they protect the victim and the members of their household from continued acts of violence and bar the abuser access to the victim. Protective orders make it illegal for an offender to have any type of contact with the victim and any other members of the family, depending on the stipulations of the order itself. Protective orders are enforceable by local law enforcement, which means that anyone who violates these orders could face arrest or other punishment.

Under Texas Law, there are three main types of protective orders:

• A temporary ex-parte protective order provides the victim with immediate protection from further acts of violence. The victim does not have to meet their abuser in court as long as the judge believes that the abuser presents a danger to the victim. These orders are short in duration (20–40 days) and an abuser cannot be arrested for violating them.
• The Magistrate’s Order for Emergency Protection is usually ordered following an abuser’s arrest for domestic violence. These are also temporary orders and last 31–60 days (up to 91 days if a deadly weapon was involved).
• A permanent protective order provides more long-lasting protection – as long as the order stipulates, but usually up to two years. There are circumstances that may lead to a longer period, however.

In Texas, restraining orders are the name given to legal actions that protect a spouse from any damaging, yet non-violent action. Examples of restraining orders may include court orders to prohibit withdrawing money from bank accounts, incurring new debt on joint credit cards, or even speaking negatively about spouses in front of dependent children. Restraining orders most often arise during a contentious divorce process.

These orders are common in Texas divorce proceedings and are simple to obtain with the assistance of a family attorney. The attorney who represents you in a divorce case might recommend a restraining order to protect you from spiteful acts of a bitter or vengeful spouse.

Your spouse will not necessarily face arrest or worse if they violate the terms of a restraining order. However, breaking the terms of a restraining order will almost certainly have serious and negative consequences for the person who breaks these orders. The courts look at a variety of factors when deciding on aspects of your divorce – and one is how well you comply with the court’s demands. If your spouse was uncooperative or violated the terms of a restraining order, the courts may be more inclined to make decisions in your favor.

Alcohol or drug addiction is a common cause of divorce. A person married to an addict often feels guilt about leaving, but just cannot take it anymore. Divorce cases involving addiction present unique issues, such as protecting the children and accounting for money wasted on the addiction. It is common for addicts to also be abusive and commit adultery. Judges take addiction seriously, especially if children are involved. Courts can order drug or alcohol testing and make visitation contingent on clean test results. “Stair step” visitation orders are also often used in addiction cases. For example, a mother who has just left rehab for pill abuse might have to be drug tested every two weeks and be given a visitation schedule initially consisting of four supervised visits of 4 hours each, then 4 visits not supervised, then visits of eight hours, then overnight visits, and then eventually visits that last all weekend (with progression to the next step of longer visits contingent on clean drug and alcohol test results).

Judges may order drug testing or addiction assessments, but they seldom order that people must attend drug or alcohol rehab. It is pretty universally understood that an addict must decide for themself to seek help for rehab to work. Attendance at Alcoholics Anonymous meetings may be required.

See our page on drug and alcohol testing.

Adultery is wrong and hurtful, but is not usually a huge factor in most Texas divorce cases. While some judges may have “old-fashioned” harsh reactions to adultery, most realize that cheating is usually symptomatic of a troubled marriage and not the sole cause of a divorce. Unlike most people, divorce judges hear and see the worst of human behavior on a daily basis. A simple affair may be shocking to the regular citizen, but to a divorce judge, it is a run-of-the-mill, common occurrence. Of course, there are some situations, such as cheating with the teenage babysitter or your brother-in-law, which would raise the eyebrows of even the most jaded divorce judge.

In the past, you had to prove adultery, cruelty, or abandonment to get a divorce. Now, because either spouse can get a divorce without a particular reason, proving adultery is far less important. Texas law still allows a spouse to allege adultery as grounds for divorce; however, a finding of adultery really has no legal significance unless it is a reason to award more of the community estate to the victimized spouse. All divorcing spouses should be aware that Texas defines adultery as sex with someone who is not your spouse, even if it is after separation. People are still considered married after they file for divorce up until the day the judge signs the divorce decree. For example, a man who files for divorce and starts dating a woman four months after he moves out is still technically committing adultery in the eyes of the court.

A divorce judge in Texas has great discretion in dividing a couple’s community property. The judge can divide the marital estate 50-50 or award 70% to one spouse and 30% to the other. Commonly, the most important factor in making this decision is the income history and income potential of the spouses. For example, a plastic surgeon may make 30 times more than her gardener husband, and, as a result, the husband may get more of the community property. Adultery or other reasons why the couple is getting a divorce may be considered by the judge in deciding how to divide property. But, for most divorce judges, adultery simply does not play a very prominent role. Of course, every client needs to ask an experienced divorce attorney about the particular tendencies of the judge assigned to his or her case. In addition, proof (or even strong circumstantial evidence) of adultery can often provide strong leverage for a good settlement because the spouse who has cheated may not want the affair to be publicly exposed.

A spouse who has been cheated on still feels terrible even if the adultery does not matter that much to the judge. The goal in every case is to settle the case quickly and fairly. However, this may not be possible if one of the spouses is really upset and not prepared to act nicely or think rationally. The victim of adultery can usually benefit greatly from professional counseling. Harboring their anger and bitterness will ultimately hurt the victim whose trust has been betrayed. It really does no good for the victim of adultery to seek revenge by doing things such as calling the other spouse’s family or boss to tell them about the cheating or to cause trouble for the “other woman” (or “other man”). Both people involved in a marriage that has been scarred by adultery have to look inside themselves, ask why it happened and eventually consider forgiveness or at least figure out how to move on emotionally.

It is important to keep these adult issues away from the children. A wife may be furious that her husband has cheated on her, but she should not tell her young children what their father has done. This advice to keep adultery away from the children also applies to the spouse who is having the extramarital relationship. Every lawyer and every judge will tell divorcing spouses to keep new boyfriends and girlfriends away from the children until well after the divorce is over.

Proving adultery can be as simple as getting the other spouse to admit it. Strong indications of an affair may include: numerous phone calls, text messages or emails to someone of the opposite sex that are unjustified by work demands; unusual changes in schedule; unexplained absences; and acting secretive. A spouse who consistently deletes his or her cell phone’s call history or text messages may also be up to something. It is important for a spouse who suspects adultery to avoid breaking the law by illegally intercepting phone calls or text messages, using a tracking device on a car, or using spyware technology or apps on their spouse’s devices. It is also smart to consult with an experienced divorce attorney before wasting money on a private investigator to follow their spouse. A spouse who has cheated will be told by their attorney to tell the truth about their affair and should expect to be asked this question in court or in written interrogatories. The other side can always subpoena the boyfriend or girlfriend to face questioning under oath.

Clients must tell their attorneys the truth and be honest about any affairs or other bad behavior during the marriage. It is not a good thing for your attorney to be surprised in court by information that you did not share with him or her. Finally, it is vital to understand that adultery can be forgiven and that some loving marriages do survive cheating. Successful marriages are built on trust, real affection, and shared effort. However, it takes a lot of work and commitment to rebuild that trust once it has been destroyed by an affair.