It’s one of the most unpleasant and heart-wrenching causes of divorce: adultery. Some estimates show that upwards of 40% of married couples in the US have been impacted by infidelity for various reasons. Even many people who have committed adultery believe that it’s wrong.
Most divorces are so-called no-fault divorces, in which the parties don’t claim a fault and just want it over and done with. Because proving an affair can be difficult, many people just go with no-fault anyway. But it is possible to file a fault-based divorce in Texas on the basis of adultery, as well as other grounds, such as cruelty.
Adultery is not a crime in Texas as it is in some other states. In 21 states, a spouse can be charged with misdemeanor adultery. In five states, it’s a felony, including fines and jail time. One famous case in North Carolina saw a man win a $750,000 judgment against his ex-wife’s lover under the state’s “alienation of affection” statute. However, that’s not how it works in the Lone Star State.
Texas Family Code section 6.003 defines “adultery” as a married person voluntarily engaging in sexual activity with another individual who is not their spouse during the marriage. However, non-sexual activities such as texting, flirting over social media, and other consented actions aren’t strictly considered adultery. They would only count if they lead to the commission of adultery.
Grounds For Divorce
The law also states that the court can issue a fault-based divorce with adultery as the reason. In order to get a divorce on those grounds, you’ll need proof of the adultery, such as circumstantial or direct evidence. This is stronger than the “preponderance of the evidence” which is used in other civil cases.
Proving actual sexual intercourse is usually difficult, but showing evidence such as:
- Phone records
- Bank and credit card statements
- Other evidence of an extramarital relationship
proves to the court that the spouse was very likely engaged in an adulterous relationship during the marriage. Furthermore, it must be proven that infidelity and the adulterous relationship are what directly led to the breakdown of the marriage.
Be forewarned that because there is no such thing as “legal separation” in Texas. Should either party begin a new relationship after filing the divorce and the final decree of divorce, even after living apart, that party can technically be considered engaged in “adultery.” The other spouse can file for a divorce based on adultery as a result.
How Adultery Affects Alimony
Most people are familiar with the term “alimony,” but Texas refers to post-divorce financial payments as “spousal support.” This is different from child support, which the courts handle separately. However, in order to receive spousal support, a spouse must be eligible to receive it. The marriage must have lasted more than ten years, or the aggrieved spouse must show that he or she is incapable of supporting themselves.
Adultery will also be considered when the court begins dividing up a marital estate. Courts take adultery into consideration when determining spousal and child support as well as property division, awarding the cheating spouse a smaller share of the marital assets.
Texas courts generally divide marital estates by what is “just and right,” but that doesn’t always mean a fair division. If you can prove to the court that your spouse did commit adultery during the marriage, you can request that the court will award a disproportionate share—greater than fifty percent—of the marital estate. This includes all property and assets from the marriage.
However, a divorce granted on the grounds of adultery generally won’t affect conservatorship (child custody), unless the spouses’ extramarital partner poses a danger to the child. The rule of law here is always “in the best interest of the child.”
Tarrant County’s Compassionate Divorce Attorney
Since 2001, Wendy L. Hart has been helping people in the Fort Worth area with various family law issues, including divorce. She represents both men and women, including child support, child custody/visitation, estate, and other family law matters. As a divorcee herself, she understands what it’s like to go through one, and will work to help you through it.