Adultery in Texas: Does Cheating Affect Alimony?

Learn whether an extramarital affair can impact spousal support in Texas.

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Adultery damages hundreds of thousands of marriages in the United States each year. Generally, marriages that experience an affair end in divorce. If you're going through a divorce based on adultery, you may be wondering about your rights and obligations in the legal process of terminating your marriage.

This article will explain how Texas law treats adultery during a divorce and whether courts will consider adultery when making decisions about alimony. If you still have questions about adultery and divorce in Texas after reading this article, you should contact a Texas family law attorney for advice.

What Role Does Adultery Play in a Texas Divorce?

Adultery can have a significant impact on how the court decides the financial issues in a Texas divorce, both alimony and property division.

Although Texas allows “no-fault” divorces, you can still file for divorce based on the fault of one spouse or the other, including adultery.

Texas defines adultery as voluntary sexual intercourse with a person besides your husband or wife. If you are filing for divorce based on adultery, you should be prepared to show the court proof of the affair. You won’t have to prove that sexual intercourse actually happened if you can show circumstantial evidence of the affair. For example, phone records, credit card, bank statements, emails, text messages, photos and videos are often used to show that a spouse was likely committing adultery.

Overview of Alimony in Texas

In Texas, courts award alimony to compensate a spouse whose ability to earn income has eroded during the marriage while taking care of the household, and who also doesn’t have enough funds to support himself or herself. Texas courts only award alimony when at least one of these specific circumstances are met:

  • the spouse being asked to pay alimony has committed domestic violence against the other spouse within two years of the divorce, as determined by a court
  • the couple has been married for at least 10 years and one spouse can’t earn enough income to pay basic expenses
  • the spouse seeking alimony has a physical or mental disability preventing that spouse from earning enough income to cover expenses
  • the spouse seeking alimony can’t work because he or she has to take care of a minor child with a disability.

If none of these criteria are met, Texas courts can’t award a spouse alimony. If the judge decides that a spouse should get alimony, the judge has to consider the following factors to determine the amount and duration of the alimony:

  • the spouses’ abilities to meet their needs independently
  • the education and job skills of each spouse
  • length of the marriage
  • age, employment history, earning potential, and health of the spouses
  • child support each spouse has to pay
  • whether a spouse wasted or hid money during the marriage
  • contributions by one spouse to the other’s education or earning potential
  • property each spouse brought into the marriage
  • contributions by a spouse to the marriage as a homemaker
  • misconduct during the marriage by each spouse, including adultery, and
  • any domestic violence during the marriage.

Alimony in Texas can’t be more than $5,000 a month, or 20% of the paying spouse’s monthly gross income, whichever is lower. There’s no specific formula to calculate alimony in Texas; courts decide alimony on a case-by-case basis.

Texas courts can change the alimony award if the spouses’ financial circumstances change. For more details on alimony in Texas, read Understanding and Calculating Alimony in Texas.

How Does Adultery Impact Alimony in Texas?

A number of states consider adultery when determining whether a spouse is eligible for alimony, while others base alimony solely on the need for support. Some states also consider a spouse’s adultery when determining how to divide the couple’s property.

Texas courts consider the adultery of both the spouses requesting alimony and the spouse that would pay alimony. A court may deny alimony to a spouse who has committed adultery. Courts also consider the adultery of a spouse asked to pay alimony, if the affair was the reason for the breakup of the marriage.

Adultery can still be considered if it was committed after the spouses separated and lived apart. If you are getting divorced because of you or your spouse’s adultery, you should contact a Texas family law attorney to help you prove the infidelity to the court.

What Else Does Adultery Impact?

Unlike many other states, Texas courts consider adultery when deciding how to divide the couple’s property in a divorce. A spouse who was unfaithful may receive a smaller share of the couple’s property and funds. Courts will also take into account any money spent on an affair, such as money spent on trips, hotels, or gifts.

Texas law typically doesn’t allow adultery to be considered when deciding child custody and visitation. Courts focus more on the parenting abilities of each parent when deciding which spouse will have custody of the children. Adultery can indirectly impact child custody or visitation, however, if a spouse abandoned the children while having the affair.

Resources

If you have additional questions about divorce and adultery in Texas, you should consult with a Texas family law attorney.

To read the full text of the law on alimony in Texas, see the Texas Family Code Chapter 8.

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