If you're facing the end of your marriage because you or your spouse had an extramarital affair, you may be wondering whether the infidelity could affect what happens in your divorce case. When you live in Texas, you have the option of filing for divorce based on your spouse's adultery. Then, if you can prove that claim, the judge might take the adultery into account when deciding how much alimony to award or when dividing your community property. But there are several other considerations that go into those decisions.
In Texas, as in all states, you need a legally accepted reason (or "ground") to get a divorce. The grounds for divorce in Texas include both fault and no-fault reasons for granting a divorce. Among the fault-based grounds, you may get a divorce if the judge finds that your spouse has committed adultery. (Tex. Fam. Code § 6.003 (2022).)
Texas courts have found that adultery, as a ground for divorce, means a married person's voluntary sexual intercourse with someone who is not that person's spouse. The courts have also found that Texans may file for divorce based on adultery that happened after the spouses separated. (See Gerges v. Gerges, 601 S.W.3d 46 (Tex. Ct. App. 2020).)
If you file for divorce in Texas based on your spouse's adultery, you'll need to prove that claim. The evidence you provide might be circumstantial—in other words, you don't need to have video of your spouse's tryst. But the proof must be "clear and positive," not just "innuendo" or suggestion. (Escalante v. Escalante, 632 S.W.3d 573 (Tex. Ct. App. 2020).)
Here are just a few examples of the kind of evidence you might use to prove that your spouse committed adultery:
If you're the one who's been accused of adultery in a divorce petition, you'll have the opportunity to deny the claims. Or, instead of arguing that you didn't have an extramarital affair, you may use the defense that your spouse condoned your behavior—for instance, by continuing to live with you despite knowing what you did. However, the judge will only accept this "condonation" defense to a fault-based divorce if it's reasonable to expect that you and your spouse could get back together. (Tex. Fam. Code § 6.008 (2022).)
The first thing to understand about alimony (or "maintenance") in Texas is that the state only allows it in limited situations. Judges may not award spousal maintenance unless the spouse who is requesting the support doesn't have enough property to provide for "minimum reasonable needs," and one of the following is true:
(Tex. Fam. Code §§ 8.051, 8.053 (2022).)
If a spouse manages to meet those strict eligibility requirements, the judge will then decide how much maintenance to award and how long it should last. When making that decision, the judge must consider all of the relevant circumstances, including a long list of factors spelled out in the law. Those factors include either spouse's adultery. (Tex. Fam. Code § 8.052 (2022).)
So the bottom line is this: If you file for divorce in Texas based on your spouse's adultery, and you're able to prove that claim, it might have an effect on the amount and duration of maintenance that the judge awards to you or your spouse—but only if the circumstances in your case meet the strict requirements for any alimony, and only as one factor among many.
Texas is a community property state. But a couple's community property isn't necessarily split 50/50 in divorce. Instead, judges must divide the property in a way that's "just and right." (Tex. Fam. Code § 7.001 (2022).)
The Texas Supreme Court has held that when judges are coming up with a fair but unequal division of property as part of a fault-based divorce, they may consider a spouse's fault in breaking up the marriage—including adultery—along with several other circumstances. (Murff v. Murff, 615 S.W.2d 696 (Tex. Sup. Ct. 1981).)
So a judge might award an unfaithful spouse a smaller share of the couple's property if that would be fair. Typically, however, judges are more likely to do this when there are also other circumstances that call for an unequal property division, or when the guilty spouse spent a considerable amount of marital funds on the affair.
Decisions about child custody (or "conservatorship") in Texas, as in all states, must be based on what would be in the children's best interests. Ordinarily, the focus on the child's best interests means that a parent's adultery won't affect a judge's decision about parenting time and where the child will live most of the time. Just because a parent has had an extramarital affair, that doesn't necessarily mean they can't be a good parent. However, a judge could conceivably consider the circumstances around a parent's adultery if it endangered the child's well-being—for instance, if the extramarital relationship involved abusive behavior, or if a parent became completely detached from the child's life because of that relationship.
Child support in Texas is calculated under a formula spelled out in the state's child support guidelines. The formula is based primarily on the income of the parent who will pay support, as well as the number of children being supported, and certain additional expenses. Because the support payments are meant for the children's needs—not as a reward or punishment for the parents' behavior—either parent's adultery won't play any role in determining which of them will pay support or the amount of the payments.
No, adultery is not a crime under Texas law.
Many people find it devastating to discover that their spouse has had an extramarital affair. But if you've decided to end your marriage as a result, you should know that it's generally not a good idea to use the divorce proceedings to punish your spouse. It's bound to increase the cost of divorce, and it will make the entire process more stressful, for you as well as your kids. It also means that you wouldn't be able to get an uncontested divorce in Texas, which is almost always a lot quicker, easier, and cheaper than a traditional contested divorce.
Despite these drawbacks, if you think that filing for divorce based on your spouse's adultery might benefit you, you should speak with a lawyer. A local, experienced family law attorney should be able to evaluate your case and explain whether it will be in your interest to file for a fault-based divorce. And if you ultimately decide to take that route, it's critical to have a lawyer prepare and present the kind of evidence you'll need to prove your claims and convince a judge that your spouse's adultery should affect decisions about alimony or property division. (Here are some tips on questions to ask before you hire a divorce lawyer.)
Similarly, if you're the one being accused of adultery in a fault-based divorce, you'll almost certainly need a lawyer to protect your interests and get a fair result—whether or not you actually had an extramarital affair.