The breakup of any relationship can be difficult. When you’re married, it can also be legally complicated. You might even find that the person you loved is willing to use your past mistakes against you to gain an advantage.

In Texas, having a criminal history can affect your divorce case. It may allow your ex to seek a fault divorce if you were convicted of a felony during your marriage. It can also impact the division of property, spousal support, child custody, and visitation. Our Austin family law firm can help you develop a strategy that is designed to protect your interests in a Texas divorce, including in situations where you have a prior criminal conviction.

At the Law Office of Jason Wright, we offer skilled legal representation to clients in Texas family law cases. We understand that every person’s story is different and work hard to develop a comprehensive plan to address both the strengths and weaknesses in your divorce. Reach out to our law offices today to schedule a consultation with an Austin divorce lawyer.

I Have a Criminal Record. Will It Affect My Texas Divorce?

If you have been convicted of a crime in the state of Texas (or elsewhere), it can potentially affect your divorce. The impact will depend on the type of conviction (felony or misdemeanor) and the crime involved. For example, if you were convicted of misdemeanor disorderly conduct in college for getting into a screaming fight outside of a bar, that may not have much of an effect on your divorce case. However, if you were convicted of any type of felony or have a domestic violence or child abuse conviction, it could affect many aspects of your divorce.

As an initial matter, Texas has both “fault” and “no-fault” divorces. Most couples choose to get a no-fault divorce, which essentially states that the marriage is irretrievably broken. A no-fault divorce is usually less expensive and less contentious compared to a fault divorce. 

There are several grounds for a fault divorce in Texas, including cruelty, adultery, and a felony conviction. Specifically, a court may grant a fault divorce in favor of one spouse if the other spouse:

1. Has been convicted of a felony;
2. Has been imprisoned for at least one year in a state or federal prison; and
3. Has not been pardoned.

Importantly, the felony conviction had to have occurred during the course of the marriage. The conviction also cannot be based on the testimony of the other spouse.  For example, if you were convicted of aggravated robbery and sent to prison for more than a year during your marriage, your spouse could get a fault divorce on that basis. However, if your spouse provided the testimony that led to your conviction, then it may not be a basis for a fault-based divorce.

In Texas, a court may take fault (such as a felony conviction) into account when deciding issues related to property division, spousal maintenance, child custody, and visitation. Even in no-fault divorces, a criminal record can impact these matters. Below, we break down what you need to know about how having a criminal history could affect you in your divorce.

The Impact of a Criminal Record on Property Division and Alimony

When it comes to financial matters, it is possible that a criminal conviction can affect how your property is divided and/or how spousal maintenance is allocated during divorce proceedings. Texas is a community property state. Under these laws, community property is any asset that is either acquired or earned during marriage that is not otherwise separate property.

There are many different types of property that may be considered community property. Most commonly, real property (such as the family home), vehicles, clothing, furnishings, bank accounts, and jewelry are assets that will be divided during a divorce.  Debts, like credit card debt, a mortgage, and car loans, will also be divided during the divorce.

During a divorce, community property is divided in a way that is “just and right.” This means that the property division has to be fair based on the circumstances. It does not necessarily mean that assets and debts will be split 50-50.

Texas courts can consider a number of factors when determining a “just and right” division of property. This can include fault in the break-up of the marriage. If you have a criminal record, then Texas courts can consider that when deciding what is fair. This is particularly true in situations where your criminal behavior affected the marital finances. 

For example, if you are charged with a crime, you might hire a criminal defense attorney to fight the allegations. This can be incredibly expensive, particularly if the case goes to trial. If you are ultimately convicted of a criminal offense after spending close to $100,000 on legal fees, that could be factored into the property division. 

Similarly, if you have to pay restitution or are unable to get a good job because of your conviction, that could impact property division. This is especially true when it comes to debt. If you are in debt due to fraudulent behavior, then a judge may take that into account when deciding how to allocate debts.

While spousal maintenance (alimony) is not awarded in every case, a criminal record may affect the amount. Texas courts can consider factors such as bad acts by either spouse when deciding how much alimony to award and a spouse’s ability to pay support. If you committed a crime during your marriage, particularly if it affected your finances as a couple, then that could be a factor in an alimony award.

Keep in mind that Texas judges are still required to divide property and debts in a way that is just and right. You are still entitled to fairness in this process, even if you have a criminal record. Our Austin divorce attorneys can work with you to come up with a strategy to protect your rights in a Texas divorce.

How a Criminal Record Can Affect Child Custody and Visitation

Child custody (conservatorship) decisions are based on the best interests of the child in Texas. Any type of criminal conviction can potentially affect your rights as a parent. This is particularly true for certain types of convictions, such as those involving:

• Family violence (domestic violence)
• Substance abuse
• Child endangerment
• Sexual offenses, including those related to child sexual abuse

In addition, any recent or repeated criminal conduct could weigh against you in a child custody matter.

Generally, your right to see your children is more likely to be affected if you have a conviction for any type of violent crime, a crime involving substance abuse (including alcohol), or an offense related to child abuse or neglect. For example, if you did something that potentially put your child in danger, such as driving under the influence with a child in the vehicle, that would likely weigh against you in any custody determination. Judges will also consider:

• The length of time that has passed since the conviction;
• The number of convictions; and
• Whether your convictions did or could potentially put your child(ren) in danger.

Remember: the courts are required to put the best interests of the child first and foremost. If you have committed any crime that puts their safety and well-being in jeopardy, it could result in a less favorable conservatorship order. This may include limited or supervised visitation, loss of custody, or even termination of parental rights.

Under the Texas Family Code, courts are also required to restrict or deny access to a child if you have a history of family violence. If the charges against you were serious enough, a court may limit your rights to see your children, such as by imposing supervised visitation.  If you harmed your children, a court may even terminate your parental rights.

Even if the criminal charges are still pending, the court can still consider the allegations against you when it comes to these decisions. This is especially true in cases where the charges indicate that you may be unstable or present a danger to your kids. In any child custody case where one parent has a criminal record, the court will also likely request psychological assessments, drug testing, or another evaluation to ensure that the children will be safe.

How Can I Protect My Interests in a Texas Divorce If I Have a Criminal History?

If you have a criminal record or charges pending, all hope is not lost for your divorce case. It is possible to develop a strategy that can mitigate many of the potential negative effects of a criminal history on a divorce and child custody case.

First, it is important to be honest with your Austin divorce lawyer about any criminal charges or convictions (in Texas or elsewhere). Your attorney needs this information to prepare an effective legal strategy. If your soon-to-be ex knows or finds out about your record, they will almost certainly bring it up during negotiations or litigation. It is better to be prepared to address the issue head-on, rather than playing defense.

Second, focus on rehabilitation. The exact steps that you will need to take here will depend on the charges in your case. If you have been convicted of drug possession, then you might go to rehab and gather evidence that you have been attending 12-step meetings. If you have been convicted of assault and battery, then evidence that you have gone to anger management programs or that you are going to therapy can be helpful.

Taking these steps is important not only to address the issues that caused you to be charged with a crime but to show the court that you take the matter seriously. It can help to show that you are working on stability and taking steps to make sure that it won’t happen again. This is particularly important when it comes to child custody determinations.

Finally, you should hire an experienced Austin family law attorney who knows how to handle complex divorces. Having a criminal record will make a difference in your divorce, so it is critical that you have a lawyer who can put together a proactive, multi-faceted strategy to address the issue. Your attorney can advise you of how your record may affect your case and offer guidance on how to mitigate the potential impacts on your divorce.

Divorcing with a Criminal Record? We Can Help.

Even if you believe that your ex would never throw your criminal history in your face, a lot can happen during a divorce that may change that reality. Having a criminal record can affect every aspect of your divorce. The good news is that there are ways to minimize this impact by working with a seasoned Austin divorce lawyer.

At the Law Office of Jason Wright, we understand how different circumstances (like having a criminal record) can complicate a divorce. We tackle these issues head-on to help our clients get the best possible outcome when it comes to their divorce and child custody matters. To learn more or to schedule a consultation with an Austin divorce attorney, call our law firm at 512-706-9662 or fill out our online contact form.