How Does Your Spouse’s DWI Affect Your Divorce, Property, and Support Rights?

A criminal conviction of any type, including driving while intoxicated (DWI), can result in a prison sentence, fines, the loss of driving privileges, and other consequences. A DWI can also affect how San Antonio family law judges will decide the core family law issues- custody, child support, the division of property, and alimony. For starters, if your spouse loses their right to drive due to a DWI, that affects your spouse’s ability to work and to transport your children.

What are the criminal penalties for a DWI in Texas?

Generally, your spouse can be found guilty of a DWI if they drive a car in public while their blood alcohol content level is .08 or their driving is impaired.

The penalties for a DWI in Texas include the following, depending on how many prior convictions a defendant/spouse has:

• First offense. This is a Class B misdemeanor. The penalties can include up to 180 days in jail, up to $2,000 in fines, and the loss of driving privileges for up to 1 year.
• Second offense. This is a Class A misdemeanor. The penalties can include up to 1 year in jail, up to $4,000 in fines, and the loss of driving privileges for up to 2 years.
• Third offense. This is a third-degree felony. The penalties can include up to 2-10 years in jail, up to $10,000 in fines, and the loss of driving privileges for up to 2 years.

There are also penalties for driving with an open container of alcohol, boating or flying while intoxicated, committing an assault while intoxicated, causing the death of someone while intoxicated, or causing bodily injury to a peace officer or a firefighter. The penalties increase if your spouse’s DWI involved a blood alcohol content level of .15 or higher.

If your spouse drives while intoxicated and while your child is a passenger, then the offense is a state jail felony.

How does your spouse’s DWI affect your divorce case?

A spouse’s DWI conviction can affect your rights and the rights of your child/children in many ways. Please understand that the reverse is also true. If you are found guilty of a DWI, your spouse will try to use that conviction against you.

The divorce

Texas has seven grounds for divorce if the spouses cannot agree to an uncontested divorce. One of those seven grounds is a felony conviction. If your spouse’s DWI conviction results in a felony, then you likely have grounds for a divorce based on the felony conviction.

Property division

Texas is a community property state. This means that the property that both spouses acquired during their marriage (no matter how the property is titled) is divided equitably, but not necessarily 50/50. A DWI conviction can reduce the amount that can be divided in several ways:

• Your spouse will likely need to pay a defense lawyer’s legal fees to protect their rights.
• Your spouse may face a civil lawsuit by anyone who is hurt if your spouse causes an accident due to their intoxication.
• Your spouse will have to pay fines if they have a DWI

Our San Antonio family lawyers will argue that equity/fairness requires that your spouse be fully accountable for these expenses, and that your right to the marital home and all the other marital assets shouldn’t be affected. Additionally, as we’ve written, one of the factors in the division of property is whether one spouse is at fault for the divorce. As we discussed above, a felony is a ground for divorce.

Custody

A spouse’s DWI conviction can affect your spouse in many ways. First, if your spouse is sentenced to jail, then your spouse is not able to care for your children during their imprisonment. In Texas, a DWI can affect the following factors that affect the custody decision:

• A parent’s health
• The stability of the child’s home environment
• A parent’s ability to care for the child
• The level of involvement a parent has in a child’s life
• The preference of the child (if old enough)

The above factors are generally compounded/worsened if the person who has a DWI conviction also has a substance abuse disorder.

If your spouse’s driving privileges are suspended, then once the spouse is released from prison, they may not be able to drive until their suspension time is met. This inability to drive your child and exchange your child (when a spouse has visitation rights) can affect the custody decision and the visitation logistics.

Child support and alimony

One of the key factors in determining child support and alimony in Texas is your spouse’s income level. During imprisonment, your spouse generally won’t have an income. Once your spouse is released, your spouse may have difficulty keeping their job (for example, if they are a truck driver and need a clean driving record) or finding a job.

Generally, the amount your spouse pays for child support is a percentage of their net resources, depending on how many children require support.

Your eligibility for spousal maintenance (the term Texas uses instead of alimony) depends on various factors that may be impacted by a DWI conviction. These factors include the inability of one spouse to earn a living and the income of the other spouse.

Our San Antonio family lawyers understand the unique challenges that arise if a spouse has a DWI conviction and/or a substance abuse disorder. We work with the police and the local prosecutor to confirm the DWI conviction and the penalties that apply. Our divorce lawyers will help protect you and your children. Call Grable Grimshaw PLLC today or fill out our online contact form to schedule a consultation.