By: E.A. Putman
*Disclaimer: The goal of this blog post is to address the law not the media sensation of the dynamic of the Smith’s marriage. To each his own.*
Divorce can be a very isolating experience as most people who have crossed that bridge will tell you that when they repeated their marriage vows, they never envisioned being a party to a lawsuit to dissolve the union. The classic vows recite the phrase “for better or worse” and it is with that declaration that even during the worst of times, couples remain committed to one another. Some to the full scope of marriage, others to only the legal bounds of marriage.
Only the legal bounds.
This is the situation where parties remain legally entwined though the emotional, physical, spiritual, or mental bounds have unraveled. I read the local, national and a touch of celeb gossip at 5am every morning. Sometime in the last two weeks, I read that during an interview about his upcoming album, a musical artist named August Alsina (who?) revealed that he once had an affair with Jada Pinkett Smith—Will Smiths wife, Niobe from the Matrix, Stony from Set it Off, Lena from A Different World and, for my Houston folks, Lyric from Jason’s Lyric. Last week Jada and Will addressed the rumor and the former confessed on her Facebook show Red Table Talk.
While Will and Jada have vowed to remain married, many others in Texas have vowed or will vow that adultery is the ultimate deal breaker and allege as much when they initiate a suit to dissolve the marital relationship. Texas is a no-fault divorce state which essentially means that neither party necessarily has to prove the other spouse did anything wrong in order to get a divorce. You only need to tell the judge that your marriage is over and there’s no chance either spouse can fix it. Alleging fault in a divorce can be relevant when dividing the community property. But, what is the outcome when a party is complicit in one of the fault grounds for divorce?
In the case of a Will and Jada type of divorce in Texas, what happens when one spouse commits adultery while the other spouse allegedly gave his or her blessing thereby condoning the affair? When going through a divorce, what does it mean if the affair was just an entanglement? ABCDE. The alphabet analysis.
Texas Family Code section 6.003 defines adultery as the voluntary sexual intercourse of a married person with one not the spouse. In court, adultery must be proven by clear and convincing evidence, which can be direct or circumstantial evidence. Have photos/videos of “the deed”? (That’s pretty direct). Years ago, I represented a client in alleging a divorce that was proven because of a child support order that was established for my client’s husband during the marriage for a child born during the marriage. (Very circumstantial) .
During the interview with Angela Yee, August Alsina stated that Will Smith gave his blessing to enter into a relationship with his wife which translates to him “it was okay.” Will denied it when the rumors started and later admitted that they were separated and he knew Jada was involved with another man. For the record, there is no legal separation in Texas. Even if you are separated and it is amicable or your spouse condones it, it is still considered adultery.
Even if a party does not outright give a “blessing,” an approval or acquiescence to adultery may be alleged as a defense. This is called “condonation.” This means that the wronged spouse was told about the affair but condoned it and tried to reconcile the marriage. Texas Family Code 6.008 states that “Condonation is a defense to a suit for divorce only if the court finds that there is a reasonable expectation of reconciliation.” Texas Courts have found that when spouses resume living together or initiate their intimate relationship, that is evidence of reconciliation.
Since no-fault divorces are less expensive to litigate and less time-consuming opt for that course even if there are allegations of adultery. Texas has six fault grounds for divorce including felony conviction, adultery, and cruelty. To prevail on a fault ground, a person must prove by clear and convincing evidence. So, as you can imagine, divorce based on a fault ground can be emotionally and financially taxing. Clear and convincing evidence requires much more than innuendos, hunches or suspicions. Is it worth it to prove adultery by hiring a private investigator and forensic accountant? It depends on what is at stake. Adultery may play a role in the just and right division of the marital property including the home and retirement accounts.
Entanglement. Situationship. Dalliance. Liaison. Fling. Jada addressed the emotional ties that built and sustained the affair and eventually admitted to adultery (the Texas legal definition). But, if emotional ties, flirtation and inappropriate conversation is the scope of the extra-marital relationship then under Texas law, it is not adultery. In Texas, adultery requires sexual intercourse. Inappropriate DMs and unaccounted for bank withdrawals may give rise to an affair but not adultery.
When a party decides to dissolve the marital relationship there are many factors to consider, especially when there are children and/ or property involved. The claim of adultery carries a difficult legal and emotional burden. If you are considering dissolving your union or are in the midst of a divorce and would like more information regarding the adultery allegation or the condonation defense, contact us at (281) 501-9033.
The Putman Firm, PLLC is a family law litigation firm that handles a wide array of family matters We are here in any family crisis even during the COVID-19 crisis. If you or someone you know are in need of legal assistance, contact The Putman Firm, PLLC at (281) 501-9033. You can also book a consultation by visiting Your Family Law Attorney.