Adultery in Texas: Does Cheating Affect Alimony?

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

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 courts treat adultery during a divorce and whether courts will consider adultery when making alimony decisions. 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 affect how a court decides the financial issues in a Texas divorce, including alimony and property division.

Although Texas allows "no-fault" divorces, you can still file for a fault divorce, where you allege that your spouse's misconduct caused the breakup. One of the most common fault grounds in Texas is adultery. (Tex. Fam. Code Ann. § 6.003.) Adultery is not illegal in Texas. Although there's no clear "definition" in Texas law, generally, courts define adultery as voluntary sexual intercourse with a person besides your spouse.

Proving Adultery Can Be Problematic

If you're filing for a fault divorce based on adultery, the court will require you to show the court proof of the affair. In other words, it's not enough for you to tell the court that your spouse was unfaithful. Instead, you'll need to introduce evidence proving your claims.

By its very nature, adultery is secretive, so it's often difficult to prove an affair. You won't have to prove that sexual intercourse actually happened if you can show circumstantial evidence of the overall affair. For example, you can produce phone records, credit card or bank statements, emails, text messages, photos, and videos to the court to show that your spouse was likely committing adultery.

Divorce trials are complex and expensive. The more evidence each spouse introduces to the case, the longer it will take for the court to rule. And if you're representing yourself in your divorce, you'll need to familiarize yourself with the Texas rules of evidence, which are the guidelines for the type of evidence you can present to the judge. If you're not sure how to take the next step in preparing for your trial, you should consult an experienced attorney near you.

Overview of Alimony in Texas

Alimony (also called "maintenance) is a court-ordered payment that one spouse pays to the other during and/or after a divorce. Texas courts reserve alimony awards for spouses who can't support themselves on a single income during or after the divorce. The purpose of spousal maintenance is to ensure that both spouses are as close to financial equals as possible.

Texas courts only award alimony when you meet at least one of these specific circumstances:

  • the paying spouse 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, or
  • the spouse seeking alimony can't work due to taking care of a minor child with a disability. (Tex. Fam. Code Ann. § 8.051.)

If the spouses can't meet any of the above criteria, the judge wont award alimony. If the court finds that a spouse qualifies, the judge then must evaluate the following factors to determine the amount and duration of the support:

  • the spouses' abilities to meet their needs independently
  • each spouse's education and job skills
  • length of the marriage
  • each spouse's age, employment history, earning potential, and health
  • both spouse's child support obligations
  • whether a spouse wasted or hidden 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. (Tex. Fam. Code Ann. § 8.052.)

Judges can't award alimony greater than $5,000 a month, or 20% of the paying spouse's monthly gross income, whichever is lower. (Tex. Fam. Code Ann. § 8.055.) Unlike some other states, judges in Texas don't have a "calculator" or special guidelines to determine alimony. Instead, judges will decide alimony on a case-by-case basis.

Texas courts can change the alimony award if the spouses' financial circumstances change in the future. (Tex. Fam. Code Ann. § 8.057.) For more details on alimony in Texas, read Understanding and Calculating Alimony in Texas.

How Does Adultery Affect Alimony in Texas?

Many 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.

In Texas, courts will look at the actions of both spouses when making a final support determination in the case. If a spouse committed adultery, the court could deny alimony, regardless of that spouse's financial need or ability to pay.

Divorcing spouses should also understand that judges may consider evidence of an affair even after the couple separated and began living apart.

What Else Does Adultery Impact?

Unlike many other states, Texas courts can consider adultery when deciding how to divide the couple's property in a divorce, but only if the court's consideration would create a "just and right" property division award. (Tex. Fam. Code Ann. § 7.001.) In other words, the judge may award an unfaithful spouse a smaller share of the couple's property and funds if it's fair to do so. The judge will usually change a property division award when an unfaithful spouse spent marital funds on the affair, such as money spent on trips, hotels, or gifts.

Texas law typically doesn't permit judges to consider a parent's adultery when deciding child custody and visitation. The court's primary focus is on what's best for the children, which is why judges are more likely to evaluate each parent's parenting abilities and relationships with the children. However, adultery may indirectly impact child custody or visitation if a spouse abandoned the children while having an affair or exposed them to a dangerous individual.

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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