RESOURCES | We’ve pulled together these resources to help clarify common family law matters and we’re here to answer any questions you may have during what we know can be an emotionally overwhelming time.

Texas Divorce Laws and Adultery
by Chris Meuse

Are you married? Are you a victim of adultery, or did you cheat on your spouse? If so, it is important to know the facts about Texas divorce laws and adultery.

According to 2018 data from the General Social Survey, 21% of men and 10% of women have had sex with someone other than their spouse during marriage. Forty percent (40%) of those who cheated on their spouses are either divorced or separated. Whereas only 17% of individuals who did not cheat are either divorced or separated.

If you live in Texas and are among those impacted by infidelity, we encourage you to learn about Texas divorce laws and adultery.

What is considered adultery in Texas?

Texas Family Code § 6.003 defines “adultery” as the voluntary sexual intercourse of a married person with another person who is not the spouse. But the spouse cheated on must prove adultery in order for Texas courts to recognize it.

How to prove adultery in Texas.

To prove adultery in Texas, the evidence must show infidelity occurred during the course of the marriage, which includes acts of adultery committed after a separation. Although adultery can be established by direct or circumstantial evidence, clear and positive proof is necessary.  Mere suggestion and innuendo are insufficient. For example, documents, emails, texts, print outs from social media, or photos.

Is adultery illegal in Texas?

No, adultery is not illegal in Texas. But Texas courts consider marital misconduct, including infidelity, in dividing the parties’ community estate.  Typically, fault grounds for divorce, such as adultery, are raised by the innocent spouse to gain a greater (or disproportionate) award of the community estate.

How does adultery affect divorce in Texas?

Adultery may affect divorce when determining property division, alimony and child custody.

Does infidelity affect child custody in Texas?

An affair would not affect child custody or conservatorship by itself in Texas. But if a parent’s relationship outside of the marriage affects the child or the child’s relationship with a parent, it could impact a judge’s ruling (e.g. a parent prioritizing a new relationship over time with a child; a new partner introduced to a child that places the child at risk; inappropriately introducing a child to a new partner; the infidelity occurred in front of the child or children, resulting in their pain, discomfort and/or embarrassment; etc.).

Does adultery impact alimony in Texas?

In Texas, there is no guarantee of alimony, or as it is termed in Texas Family Law: spousal maintenance. First, the spouse must be eligible for spousal support. To determine eligibility, two things must be true:

  1. The requesting spouse is unable to meet his/her own “minimum reasonable needs”; AND
  2. At least one of the following must apply.
    1. The paying spouse was convicted of or received deferred adjudication for a family violence crime against the requesting spouse or the requesting spouse’s child(ren), and the family violence crime occurred no more than two years before the divorce petition file date or while the divorce petition was pending; OR
    2. The spouse seeking support cannot earn the minimum reasonable needs due to physical or mental disability; OR
    3. The marriage lasted 10 or more years, and the spouse seeking support “lacks the ability” to earn enough to meet minimum reasonable needs. Further, the requesting spouse must show that he/she is diligently attempting to earn enough to provide for minimum reasonable needs; or during the separation and divorce proceeding, the requesting spouse has been diligently working to develop the skills necessary to provide for minimum reasonable needs; OR
    4. The requesting spouse will have child custody (or primary conservatorship) of a minor or adult child from the marriage who needs “substantial care and personal supervision”, preventing the spouse seeking support from earning enough to meet minimum reasonable needs.

Then, the judge will review all linked factors to determine the amount and duration of spousal maintenance. Some relevant factors include:

  1. Financial resources of each spouse;
  2. The employment history of the spouse seeking support;
  3. Employment skills and education that would allow that spouse to earn “sufficient income”;
  4. The length of time to acquire skills and education to earn “sufficient income”;
  5. Marriage duration;
  6. Age of the spouse seeking support;
  7. The emotional and physical wellbeing of the spouse seeking support;
  8. Excessive spending, or destruction, hiding or fraudulent disposition of joint or community property;
  9. A spouse’s contribution to the other spouse’s career; and
  10. Contributions of property to the marriage.

Does adultery affect property distribution in Texas?

When it comes to Texas divorce laws and adultery, family courts may consider infidelity when dividing property and debt between divorcing spouses, by awarding a greater amount of community property to the innocent spouse and/or debt to the adulterous spouse.

Texas is a community property estate. Assets acquired during the marriage are presumed marital or community property. For example, community property may include personal property, joint bank accounts, and other assets. Additionally, community debt or marital debt incurred during the marriage is presumed to be the liability of the community estate.

Texas Courts divide marital property according to what is “just and right,” meaning a court has discretion in making an equal award of property or awarding a spouse more or less than 50% of the estate.  If a spouse is seeking a disproportionate award based on adultery, the spouse cheated on must show that the infidelity resulted in the breakup of the marriage or that the cheating spouse wasted community property on the relationship outside of the marriage.

A disproportionate division of the community estate based on fault in the breakup of the marriage, such as adultery, cannot be used simply to punish the spouse at-fault.  However, a court should consider the benefits the innocent spouse would have received had the marriage continued (e.g. use of community property, income, insurance benefits, etc.).

Waste of community assets by the cheating spouse may also lead to a greater award of property to the innocent spouse.  A party may prove waste by providing evidence that shows that the cheating spouse spent community property money on gifts, food, transportation, vacations or other items as part of the extramarital affair. At that point, the cheating spouse may receive a smaller share of the community estate.

What if we’re separated when the adultery occurred?

Texas does not recognize “legal separation”. A married couple remains married until a Texas judge issues the final divorce decree. Therefore, if the spouses are separated when the adultery occurred, it is still considered adultery by Texas Courts.

Adultery could affect your divorce. Consult an experienced Dallas/Fort Worth divorce attorney at KoonsFuller today.

Did your husband or wife cheat? It could impact the divorce process.

If you have questions about Texas divorce laws and adultery, contact family law board-certified attorney Chris Meuse or any of our other KoonsFuller attorneys located in Dallas, Denton, Houston, Plano or Southlake/Fort Worth.

If you are considering divorce or going through a divorce, schedule a consultation with one of our licensed attorneys. The consultation provides you with an opportunity to ask questions and receive honest feedback.

We take great pride in representing our friends and neighbors throughout the State of Texas. We hope that you give us the opportunity to represent you and your family.

Other articles that may interest you: