Article Summary:
Adultery is a recognized fault ground for divorce in Texas, but it doesn’t automatically determine the outcome of a case. This guide explains how adultery and divorce in Texas intersect, including how courts evaluate evidence of infidelity, when adultery may affect community property division, child custody, or spousal maintenance, and whether pursuing a fault-based divorce is worth the additional time and legal expenses involved. Understanding how Texas divorce laws on adultery affect your rights and the strategic implications of alleging adultery can help you make informed decisions throughout the divorce process.
Key Takeaways:
- Adultery is a fault-based ground for divorce under Texas Family Code § 6.003.
- Spouses alleging adultery must provide evidence that infidelity more than likely occurred.
- Adultery alone does not determine property division, custody or spousal maintenance, but it may influence those decisions depending on the facts.
- Courts may consider whether community funds were used to support an affair when dividing marital property.
- Child custody decisions are based on the child’s best interests, not simply whether a spouse was unfaithful.
- Pursuing adultery as a fault ground is not always the best legal strategy, particularly if the cost of proving fault outweighs the potential benefit.
Discovering that a spouse has been unfaithful is never easy. Infidelity goes beyond emotional pain and worries about the future. It can also have an impact on the parties’ finances and their children during divorce. Many people assume that cheating automatically affects the outcome of a divorce, but Texas law is more nuanced. While adultery in a Texas divorce doesn’t automatically determine the outcome of a case, it can influence property division, child custody, spousal maintenance and other matters, depending on the circumstances.
Because Texas is a community property state, courts divide marital property according to a “just and right” standard, and adultery is one factor that may be considered during the property division phase of a divorce. Divorce involving adultery can be emotionally and legally complex, so it’s important to seek guidance from experienced divorce attorneys in Fort Worth to protect your finances and parental rights.
Is adultery a ground for divorce in Texas?
Yes. Under Texas Family Code § 6.003 adultery is a fault-based ground for divorce. While Texas is technically a no-fault divorce state, meaning a party doesn’t need to prove fault in order to get divorced, Texas divorce laws on adultery do allow parties to sue for divorce based on fault grounds.
Unlike a no-fault divorce, a fault-based divorce allows one spouse to argue that the other spouse’s conduct contributed to the breakdown of the marriage. If the court finds a party is indeed at fault for the failure of the marriage, it may take fault into consideration when considering how property will be divided and other matters will be handled in the event of divorce.
To learn more about fault-based and no-fault divorce, see our guide to grounds for divorce in Texas.
How do Texas courts define and prove adultery?
Texas laws on divorce for adultery don’t define adultery specifically. However, the courts have generally defined adultery as voluntary intercourse between a married person with someone other than their spouse. Emotional affairs, inappropriate communications and online relationships may damage a marriage, but they do not by themselves amount to “adultery” under Texas law.
To qualify as adultery in Texas the conduct must occur during the marriage. It is important to remember that there is not legal separation in the state of Texas. In other words, adultery can be alleged at any point prior to the finalization of divorce.
Evidence is required to prove adultery in Texas
In many cases, direct evidence of adultery doesn’t exist, and some people won’t openly admit to an affair. If a spouse alleges infidelity in divorce, Texas courts may allow the party to prove adultery occurred with circumstantial evidence. Depending on the circumstances, evidence may include text messages, emails, voice and video recordings, social media activity, financial records, hotel receipts, travel records, or witness testimony.
Judges decide if adultery has occurred based on preponderance of the evidence
Because divorce cases are handled through the civil courts, the burden of proof is typically lower than in a criminal case. To prove infidelity, the spouse making the allegation must present sufficient evidence to show based on a preponderance of the evidence that the adultery occurred.
Evidence must be gathered in accordance with state and federal laws
If you suspect your spouse is having an affair, it’s important to gather information legally. Hacking into a spouse’s financial, email, social media or other personal accounts, installing spyware or intercepting private communications may violate state or federal law and could create additional legal problems for you.
Before attempting to collect evidence on your own or hiring a private investigator, consider speaking with an experienced family law attorney about your options.
The legal impact of adultery on Texas divorce cases
Many people assume that proving adultery automatically determines the outcome of a divorce. In reality, Texas courts won’t punish a spouse simply for being unfaithful. When divorce in Texas adultery cases are brought to court, judges focus less on punishing misconduct and more on whether the conduct had a measurable impact on the marriage, finances or other aspects of the case.
Under divorce laws in Texas, adultery may become relevant when courts evaluate financial issues, consider the circumstances surrounding the breakdown of the marriage and determine what constitutes a fair outcome. In some cases, evidence of infidelity may also affect settlement negotiations and litigation strategy long before a judge ever hears the case.
Can adultery lead to a larger share of marital property?
Potentially. Because Texas is a community property state, courts divide marital property in a manner that is “just and right” rather than automatically splitting assets equally. While Texas courts do not automatically award a larger share of property because adultery occurred, they may consider whether the affair resulted in the misuse or dissipation of community assets.
For example, expenditures on gifts, travel, hotel stays, entertainment, or other expenses connected to an extramarital relationship may become relevant during property division. In some adultery divorce Texas cases, judges may award a disproportionate share of community property to the innocent spouse when the evidence shows marital funds were used to support the affair or due to egregious behavior by the cheating spouse.
Alternatively, a spouse may file a wasting claim to recoup marital funds spent on an affair, instead of pursuing fault grounds to receive a disproportionate share of the estate. There are strategic implications involved with both options, so it’s best to consult an experienced divorce attorney to help you weigh your options.
Can adultery strengthen a party’s negotiation leverage?
In some cases, yes. Most divorces settle before trial, and the strength of the evidence can influence negotiations between the parties. When credible evidence of adultery exists, it may affect how each side evaluates the risks and potential outcomes of mediation vs. litigation. The person accused of adultery may also want to shield any paramour from having to be involved in the litigation.
That doesn’t mean a spouse automatically gains an advantage by alleging infidelity. However, in a Texas divorce, infidelity evidence that is documented may encourage more productive settlement discussions, particularly when financial issues are involved. Every case is different, and the impact of adultery will depend on the specific facts and circumstances presented to the court.
Will adultery affect child custody in Texas?
Not necessarily. In Texas, courts make child custody decisions based on the child’s best interests, and adultery isn’t automatically harmful to a child. However, if a parent’s infidelity involves actions that do pose a threat to the child’s safety, stability or emotional wellbeing, the court will consider that evidence when making determinations about custody and visitation.
For example, in Texas divorce, infidelity may be taken into consideration by the court if a parent’s relationship exposed the child to dangerous individuals, created an unstable home environment (substance abuse, violent behavior, verbal threats) or interfered with the parent’s ability to meet the child’s physical and emotional needs. Ultimately, the affair itself matters less than its impact on the child.
Does adultery impact spousal support in Texas?
It depends on the circumstances. Under Texas law, a spouse must first meet specific eligibility requirements before a court will consider awarding spousal maintenance, most notably as it relates to length of the marriage. Earning capacity, the length of the marriage, existing health conditions and other statutory factors typically play a larger role than marital misconduct alone.
That said, adultery may be a factor the court considers when evaluating a request for spousal maintenance. Specifically, if evidence exists that a spouse used marital funds to support an affair, the court will take that into account when assessing the parties’ financial circumstances and determining whether spousal maintenance is warranted.
While adultery in Texas divorce may influence certain financial considerations, it doesn’t automatically result in an award or denial of spousal support. Courts still focus primarily on legal eligibility and the overall circumstances of the marriage.
Should you file for a fault-based divorce due to adultery?
Not always. While adultery is a recognized fault ground under Texas law, proving adultery often requires additional investigation, discovery, witness testimony or other evidence. Those efforts can increase the cost and complexity of a divorce case.
In some situations, pursuing adultery as a fault ground may be worthwhile. For example, if a spouse spent significant community funds on an affair, proving adultery could strengthen arguments related to property division or other financial matters. However, when a marital estate is relatively small, the potential benefit may not justify the legal expense required to prove fault.
Texas allows spouses to pursue a no-fault divorce based on insupportability (known as irreconcilable differences in other states), which is often faster, more cost efficient and less emotionally taxing. Before deciding whether to pursue a fault-based divorce, it’s important to evaluate the available evidence, the size of the marital estate and whether proving adultery is likely to produce a meaningful outcome.
Take the first step toward a fair resolution with the Sisemore Law Firm
Cases involving adultery and divorce in Texas are often more complicated than they initially appear. While adultery can affect property division, custody disputes and other aspects of a divorce, proving fault is not always the most effective legal strategy. The right approach depends on the facts of your case, the available evidence and the issues at stake.
The experienced divorce attorneys in Fort Worth at the Sisemore Law Firm regularly handle high-conflict, fault-based and no-fault divorce cases. Whether you’re considering alleging adultery or evaluating your options for resolving a divorce, our team can help you understand the potential benefits, costs and legal implications before taking the next step.
For personalized legal guidance, contact us today to schedule a consultation.
Frequently asked questions about adultery and divorce in Texas
Is adultery illegal in Texas?
No. Adultery is not a criminal offense in Texas. However, adultery remains a fault-based ground for divorce under Texas Family Code § 6.003 and may affect issues such as property division, child custody, spousal maintenance and other financial matters during a divorce.
Do you have to prove adultery to get divorced in Texas?
No. Texas allows both fault-based and no-fault divorce. A spouse can pursue a no-fault divorce based on insupportability (Irreconcilable differences) without proving that the other spouse engaged in wrongdoing. However, proving adultery may provide strategic advantages in certain cases.
What evidence is accepted to prove adultery?
Texas courts may consider both direct and circumstantial evidence. Depending on the circumstances, that evidence may include text messages, email exchanges, social media activity, financial records, hotel receipts, travel records, photographs, witness testimony or information obtained through a private investigator.
What are common challenges when proving infidelity?
Direct evidence of adultery is often difficult to obtain, which means many cases rely on circumstantial evidence. Courts generally require more than suspicion, assumptions or emotional accusations. The spouse making the allegation must present evidence showing that adultery more than likely occurred.
Does cheating mean you lose everything in a Texas divorce?
No. Texas courts do not automatically punish a spouse for adultery by awarding all marital property to the other party. However, adultery may influence property division, particularly when community funds were spent on an affair or the conduct had a measurable financial impact on the marriage.
Can a cheating spouse get custody in Texas?
Yes. Texas courts make custody decisions based on the child’s best interests rather than marital misconduct alone. Unless the affair negatively affects the child’s safety, stability or well-being, adultery by itself is unlikely to determine the outcome of a custody dispute in Texas.
