By Divorce.com staff
Updated Dec 29, 2022
Adultery can take a devastating toll on a marriage, and many divorcées cite cheating as the reason they decided to split from their spouse.
If you have been the victim of infidelity on the part of your spouse, then you may be wondering how Texas law looks at adultery in the context of divorce proceedings.
If you intend to prove that your spouse committed adultery, then you will definitely want to speak with a qualified family law attorney. However, maybe you just want a little information about what a Texas court will or won’t do before you retain a divorce attorney.
In this article, we’ll explore how the Texas Family Code deals with adultery – including how to prove it and what the consequences could be for the cheating spouse.
Let’s get started.
What Is Considered Adultery in Texas?
If you’re reading this, then you probably feel as though your spouse has broken their marriage vows. But does Texas divorce law see it the same way?
Under Texas family law, adultery is voluntary sexual intercourse between one spouse and someone who is not a party to the marriage. In other words, emotional affairs can definitely feel like cheating, but that emotional distress won’t necessarily help you in court.
Likewise, sexual assault does not constitute adultery, and we think it would be pretty inhumane if it did.
It is the job of Texas lawmakers to do their best to balance protecting you and your spouse, and you’ll want to keep that in mind before you ask your attorney to fight like hell for the sake of emotional catharsis.
If you can’t prove adultery as defined above, then expect your divorce lawyers to guide you toward a no-fault divorce. You can still reach a favorable compromise in court without alleging any specific, legally recognized marital misconduct.
Is Adultery Illegal in Texas?
Adultery is not illegal in Texas – but the court will consider infidelity when dividing the spouses’ community property. Texas divorce laws allow the judge to award a larger share of the couple’s assets to the innocent spouse as repayment for the funds the cheating spouse spent on the affair – from lavish gifts to weekends away to purchasing a condo to conduct the affair.
How Does Adultery Affect Divorce in Texas?
As mentioned above, adultery is one of the stated fault grounds for divorce in Texas, but we also mentioned that proving adultery can be a pretty big hassle. This information combined may lead you to ask, “Why do people file for fault divorce, anyway?”
The answer is that proving adultery as the basis for your divorce can have a big impact on how community property is divided by the court.
When Texas courts are tasked with determining how to divide community property, they are instructed by law to make a decision that is “just and right”. As you might expect, those terms are definitely up for interpretation, and Texas judges have a fair amount of discretion.
This means that there are a lot of factors for judges to consider, and evidence of an extra-marital affair can certainly be one of them.
This is especially true if there is evidence of the cheating spouse spending community property funds on their affair. This includes spending on hotel rooms, gifts, dinners out, and the like.
If this sounds like your marriage, then in all likelihood, the judge will divide your marital property in order to offset the marital funds that were spent without your knowledge or permission.
Before we move on, we have one important note about Texas property division more broadly. Regardless of whether adultery has occurred, only marital assets will be considered in your divorce.
No matter what, each spouse can expect to keep their separate property, which includes gifts, inheritances, and anything earned before the marriage, so long as they haven’t been commingled with marital assets.
How Do You Prove Adultery in Texas?
You know your spouse has been unfaithful, but you (thankfully!) don’t have the photos to prove that actual sex acts have occurred. Does this just mean that you’re out of luck?
Well, you’ll be relieved to hear that, in this case, the law is working in your favor. If you can sufficiently prove that an extra-marital affair has taken place, then Texas courts will often presume that sex acts went along with it.
But how do you prove an affair?
As exciting as a stakeout sounds, you can put away your telephoto lens because, in most cases, you can prove adultery with circumstantial evidence alone. Circumstantial evidence might include things such as:
- Bank statements (you may need a forensic accountant to trace the dissipation of marital funds);
- Phone records;
- Email or text messages between your spouse and the person with whom they were cheating.
Of course, if you do have photos, that will work as well.
How Does Adultery Affect Alimony in Texas?
Unlike Texas, the courts in most US states will not consider adultery when dividing marital property. However, adultery can have a big impact on alimony (also known as spousal support or spousal maintenance) in other states.
Staying on-brand, Texas goes against the grain and reverses that rule of thumb.
In Texas, alimony is only ever awarded under a limited set of circumstances defined by law. Without going into too much detail, all of them have to do with one spouse being incapable of earning a living on their own.
If a party to a divorce meets these criteria, then Texas judges have a long list of factors to consider when awarding alimony. This is where adultery’s meager influence shows up.
Adultery is specifically listed as one factor for consideration, as is dishonesty about money, which can often go hand-in-hand with cheating.
However, it’s important to keep in mind that no single factor is determinative. Even if one spouse cheated and all other factors come out in their favor, then the court very well may award them the same alimony payments as they would have otherwise.
Just like in property division, judges have a lot of discretion when it comes to alimony, so you certainly shouldn’t count on cheating influencing the outcome.
Does Adultery Affect Child Custody in Texas?
When it comes to child support and custody, Texas judges are accountable only for the best interests of the child, and having a relationship with both parents is usually considered to be in the child’s best interest. As a result, marital infidelity usually will not impact child custody.
The one caveat is when an extra-marital affair starts to affect your child directly. For instance, if the court deems your spouse’s lover to be a dangerous person – for example, a criminal, an addict, or a child abuser – then the judge might award you greater or sole custody in order to prevent your child’s exposure to that individual.
This can be very hard for some scorned spouses to hear. After all, isn’t it true that untrustworthy people don’t make good parents?
While that may be the case, a court will not see an affair and extrapolate that the perpetrator is untrustworthy in all aspects of their life.
When it comes to child custody, we encourage you to take a step back and think like a judge. You may never want to see your spouse again, but do you really want your child growing up without their other parent?
Adultery and Property Division in Texas
While most community property states aim for an exact 50/50 split of marital debts and assets, you may remember from earlier that Texas judges are instructed simply to make a determination that is “just and right”.
This can be approximately a 50/50 split, but it certainly doesn’t have to. Judges take a holistic look at the circumstances of your marriage, and they do their best to be fair and unbiased in making their decision.
Even if your spouse hasn’t cheated on you, they are unlikely to get exactly half of the shared assets – and that remains true for cheating spouses.
That being said, adultery can (and likely will) be considered when a court divides your community assets. Talk to an attorney about how to make an effective case for the cheater getting less than they would have otherwise.
If you can show that your spouse is guilty of using community assets to fund the affair, then you’ll likely get a disproportionate amount of the assets to repay what your spouse dissipated (spent) on the affair.
Finding out that you’ve been the victim of marital infidelity can be a truly devastating experience. However, you might be able to make the best of a bad situation and reap the benefits that come along with your suffering if you can prove that your spouse committed adultery.
When it comes to Texas divorce, there really is no sure thing. Judges have a lot of discretion, but an extra-marital affair will definitely be taken into account – as long as you can prove it.
Is Adultery a Crime in Texas?
No, adultery is not a crime in Texas. Adultery is one of the four fault-based grounds for divorce in Texas (the others are Physical or Emotional Cruelty, Conviction of Felony, and Abandonment).
Although adultery is not a crime, that doesn’t mean the cheating spouse won’t have to “pay for their sins” by being awarded a lesser share of the community property than their spouse.
What is The Penalty for Adultery in Texas?
The penalty for adultery in Texas only applies if you’re divorcing your spouse (or vice versa) and using infidelity as your ground for divorce. The court has the discretion to award the innocent spouse a larger share of the couple’s marital assets to reimburse the community assets the cheater used to fund an affair without the knowledge or approval of the innocent spouse.
Can You Sue Your Spouse for Adultery in Texas?
You cannot sue your spouse – or their girlfriend or boyfriend – for adultery because adultery is not illegal in Texas.
Is Texting Considered Adultery in Texas?
No, but text messages can help to prove that your spouse actually committed adultery.
Is Kissing Considered Adultery in Texas?
No. In Texas, adultery is narrowly defined as a married person voluntarily engaging in sexual intercourse with someone who is not their spouse during the marriage (including while they are separated but not yet divorced).
A sexual encounter that does not include actual sexual intercourse – for example, kissing, petting, or otherwise “making out” – is not legally considered adultery in Texas.