Court hearing about divorce with adultery in Texas

Last Updated on May 2024

Adultery isn’t a crime in Texas. However, it can be used as a reason for divorce. It will be considered in a divorce case and can affect the court’s decision if it has an impact on the children or finances involved.

More details on the connection between infidelity and divorce-related issues in Texas are provided below.

What Is Considered Adultery?

According to the Texas Family Code, adultery in a marriage is the voluntary sexual intercourse of a married person with someone who isn’t their spouse. Since Texas is the state where both no-fault and fault-based divorces are recognized, a petitioner may file for marriage dissolution naming adultery as the main reason. Keep in mind that sleeping with someone while separated will also likely be classified by the court as marital unfaithfulness.

So, based on the Texas divorce law, adultery is a valid ground for terminating a marriage. The judge will consider this factor when studying the case and deciding on crucial matters like child custody and support, spousal maintenance, division of assets, etc. Still, it doesn’t mean that a spouse’s cheating will be the sole key aspect affecting the court’s decisions.

Is Adultery Illegal in Texas?

Though adultery isn’t perceived as a criminal misdeed, it can still affect a divorce process and final court orders. Typically, an extramarital affair may impact child support arrangements, property and debt division, and alimony terms. Sometimes, a petitioner may not indicate spousal infidelity as the major reason for initiating divorce. It happens when spouses want a no-fault, uncontested marriage dissolution, which usually implies a quicker and cheaper divorce process.

How to Prove Adultery in Texas?

Proving adultery in divorce is a must if you file for a fault-based divorce because of your partner’s cheating. The proof of infidelity has to be clear, irrefutable, and convincing. The court won’t accept mere suggestions or suspicions. In general, to confirm adultery in Texas divorce, you may use:

  • Direct evidence – you can invite witnesses who have observed the adulterous behavior of your spouse. Besides, you can present photos depicting the adulterous acts.
  • Circumstantial evidence – phone records, emails, or text messages are regarded as clear-cut proof.
  • Evidence collected by a private investigator – they can conduct surveillance, gather evidence, and provide testimony in court to support the claim of adultery.
  • Financial data – you may show to court credit card receipts, hotel charges, and other suspicious expenses that your partner cannot or doesn’t want to explain.
  • Confession – an unfaithful spouse may admit the affair either voluntarily or under questioning during a divorce. A confession serves as strong evidence of adultery.

Does Infidelity Affect Divorce?

Divorce based on adultery is recognized as a fault-based marriage dissolution that typically lasts longer than no-fault cases since a petitioner has to collect and prepare evidence for the court.

Still, the most important question for couples divorcing due to infidelity will probably be, “How does adultery affect divorce?” Sometimes, it really has a serious impact on how the process evolves and what provisions will be outlined in the Final Decree of Divorce.

Property Division

Texas is a community property state. So, all property obtained by spouses during marriage is recognized as joint possessions and must be divided equally between them during divorce. Still, in some specific cases, the court may deviate from the “just and right” division approach when adultery took place during martial life or agreed-upon separation. It doesn’t mean, though, that it happens in every divorce case based on infidelity.

Usually, the court considers the unique circumstances of a couple and extramarital relationship when deciding on property division. For instance, if an adulterous spouse wasted community assets on the affair or if the adultery badly affected the financial well-being of spouses, an infidel partner may get a smaller share of marital property.


To get alimony in Texas, a claiming spouse must prove financial problems to be eligible for spousal maintenance. Usually, alimony is granted if a requesting spouse lacks sufficient property to provide for their minimum reasonable needs or is unable to earn enough to cover basic expenses because of their own or child’s physical or mental disability.

If a non-paying spouse meets these criteria, the judge will determine spousal maintenance terms. Different factors impact the amount and duration of alimony, and proven adultery is one of them.

Child Custody

The court always prioritizes the best interest of the child and not either parent’s misconduct when defining custody in Texas. The same applies to a child support amount, which is calculated in accordance with clear guidelines. However, adultery can potentially affect child custody and support decisions in some situations.

For instance, if the adulterous conduct of one parent negatively affects their ability to provide a stable and supportive environment for the child or if they have a relationship with a person who was accused of using or sharing drugs, the court will consider this information when determining custody rights.

How to Divorce a Cheating Spouse in Texas

Divorcing a cheating spouse may be emotionally painful and confusing due to the complex legal processes involved, so people decide to consult a lawyer to understand their options and have legal assistance along the way. If you choose to cite a spousal affair as the reason for divorce, you’ll have to deal with a fault-based marriage dissolution.

The main distinctive feature of this divorce type is that a filing party has to collect convincing evidence of a partner’s wrongdoing. Once done, it is necessary to file a Petition for Divorce, serve a defendant, wait for the response, and attend a trial after the mandatory waiting period. The judge will make decisions on the divorce terms based on the evidence presented. Next, parties will receive a signed Final Decree of Divorce, meaning their marriage is officially dissolved.

The more disputable the case is, the longer it will last and the higher the expenses will be. Sometimes, even in fault-based cases, spouses manage to resolve their disputes more amicably with the help of skilled mediators.

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