Adultery in Texas

Is it Illegal to cheat on your spouse in Texas?

According to the Texas Family Code section 6.003, adultery is defined as voluntary sexual intercourse between one spouse and someone who is not a party to the marriage. In other words, while emotional affairs may feel like cheating, they will not exactly help you in court.

  • Adultery is among the most common grounds for divorce in Texas.
  • Adultery is not a crime in Texas.
  • Although there is no clear “definition” in Texas law, courts usually define adultery as voluntary sexual intercourse with someone other than your spouse.

Providing Proof

Even though Texas allows “no-fault” divorces, you can still file for a fault divorce by claiming that your spouse’s misconduct was the cause of the breakup.

“Adultery can be established by:

  1. Direct evidence or
  2. Circumstantial evidence Adultery can be shown by direct or circumstantial evidence.” In re Marriage of C.A.S. & D.P.S., 405 S.W.3d 373, 383 (Tex. App. 2013)

Proof of adultery is clear and convincing. However, the suggestion of adultery is not enough to prove that it’s factual. Ayala, 387 S.W.3d at 733.

Strong and convincing evidence is a higher standard than “preponderance of the evidence,” which is generally used in civil disputes.

What if I Get Another Woman Pregnant During a Divorce?

Adultery can be proven through direct or circumstantial evidence. As a result, pregnancy would be direct proof of adultery.

As discussed below, once adultery is proven, the party who is not at fault can use it to request a disproportionate share of the community estate.

Is Cheating Considered Adultery?

In Texas, adultery requires sexual contact. Certain sexual encounters that are not specifically intercourse are not legally considered adultery.

In other words, while your spouse may be cheating by exchanging sexually charged emails, photos, sexting, or texts with another person, it does not meet the legal definition of adultery in Texas.

We Were on a Break, is it Still Adultery?

Even if you were “on a break”, having sex with someone other than your spouse can be grounds for divorce due to adultery. Ayala, 387 S.W.3d at 733-734.

Until the divorce is finalized, you are married. Texas does not recognize illegal divorce.

Disproportionate Share of Property

Texas is a no-fault divorce state. This means that neither party necessarily has to prove that the other spouse did anything wrong in order to get a divorce

However, grounds for fault, such as adultery, can be relevant in divorce when dividing the community property is involved.

“Just and right division” is a term used in Texas Family Code. This means the divorce is not a 50/50, despite common belief.

The main reason that adultery matters in divorce is that if it can be proven, it can be used to support a request from the spouse who is not at fault for a disproportionate division of the community property between the parties.

What Adultery Does Not Do

Adultery in Texas does not give grounds to make a spouse eligible for alimony or spousal maintenance.

In addition, the acts of adultery alone will not change the outcome of child custody or conservatorship provisions. While adultery may make you a poor spouse, it does not inherently mean you are incapable of effective parenting.

Should I Hire a Private Detective?

Adultery is inherently secretive, making it difficult to prove an affair. If you can show circumstantial evidence of the overall affair, you won’t have to prove that sexual intercourse occurred. You can, for example, provide the court with phone records, credit card or bank statements, emails, text messages, photos, and videos to demonstrate that your spouse was likely committing adultery.

Unless the parties have substantial marital assets, then the money that would have been spent on a private detective should be better spent in other ways.

It is important to look at all the facts of the case before hiring a private detective. If it ends in a small amount of money that is gained, then it is generally not worth it.

Divorcing While Pregnant, but the Child Isn’t Your Husband’s

In Texas, If you are married to a man and become pregnant during a marriage, there is a legal presumption that your husband is the father of your child. Even if a divorce is finalized and the child is born within 300 days of the divorce, it’s still assumed that the child belongs to your ex-husband.

The law in Texas looks for any reason to declare your husband the father of a child that is birthed during a marriage. The law even covers the months immediately following the finalized divorce.

Texas Family Code Section 160.204 states that a man is presumed to be the father if:

  1. He’s married to the mother of the child and the child is born during the marriage.
  2. He’s married to the mother of the child and the child is born before the 301st day after the date the marriage is terminated by either death, annulment, declaration of invalidity, or divorce.
  3. He married the mother of the child before the birth of the child in apparent compliance with the law, even if the attempted marriage is or could be declared invalid, and the child is born during the invalid marriage or before the 301st day after the date the marriage is terminated by death, annulment, declaration of invalidity, or divorce.
  4. He married the mother of the child after the birth of the child in apparent compliance with the law, regardless of whether the marriage is or could be declared invalid, he voluntarily asserted his paternity of the child.

Don’t wait more than four years to find out who the father is.

To determine parentage, a lawsuit must be filed within four years of the child’s birthdate. That is, a lawsuit must be filed before the child turns four years old to determine the biological father or presumed father of the child. As the mother, you must file within the time frame specified in order for the court to investigate the matter.

There are, however, two exceptions to this rule. The first exception would be if the presumed father did not file a lawsuit during this time period because he was misled that he was the child’s biological father. The last exception is if the child’s presumed father and mother never lived together or had sexual relations with one another at the time the child was conceived.

The simplest way to get around the four-year requirement is to show that your husband, the presumed father, did not live with you or have sexual relations with you at the time the child was conceived. However, overcoming the “husband is the father of the wife’s child” presumption can be extremely difficult if you and your husband are unable to prove this to a court.

Texas Family Code is section 160.607 which states:

  1. Except as otherwise provided by Subsection (b), a proceeding brought by a presumed father, the mother, or another individual to adjudicate the parentage of a child having a presumed father shall be commenced not later than the fourth anniversary of the date of the birth of the child.
  2. A proceeding seeking to adjudicate the parentage of a child having a presumed father may be maintained at any time if the court determines that:
  1. the presumed father and the mother of the child did not live together or engage in sexual intercourse with each other during the probable time of conception; or
  2. The presumed father was precluded from commencing a proceeding to adjudicate the parentage of the child before the expiration of the time prescribed by Subsection (a) because of the mistaken belief that he was the child’s biological father based on misrepresentations that led him to that conclusion.

When the Divorce is Filed, How to get the Biological Father Involved

In order for all the parties in this scenario to have an opportunity to present themselves in front of a judge, you or your spouse must include the biological father as a party to the divorce. Then, a request needs to be made to the court to administer a genetic examination of the parties. This will establish the biological father of the child actually is.

How the Child of an Affair Can Complicate Other Matters Related to Your Divorce

If the child is eventually found to be legally the child of the correct man, this would create a scenario where your right to a portion of the community estate would not be justified anymore.

This would mean that if your spouse wants to argue that the reason for the divorce was because of your infidelity, then there are ways to prove that. The evidence with which your spouse could utilize in court would be the child itself. To a judge, the child would be a perfect example that adultery occurred during your marriage to your husband.

Final Word

When attempting to determine who the biological father of the child is, it is important to remember that it is best to act sooner rather than later.

A divorce cannot be finalized unless one man is ordered to follow the terms of the conservatorship, possession, access, and visitation orders for the child. It is critical that this matter be brought to the attention of the court. This forces the court to make a decision and conduct further investigation while the four-year statute of limitations is still in effect.

If you have any questions about the topic that we have just covered, please check us out our list of the Best Divorce Attorneys in Houston Texas. Our family law attorneys offer consultations that are free-of-charge at our office or over-the-phone. With a consultation, you experience a great opportunity for asking questions and receiving feedback about your circumstance. We hope to hear from you with any questions you may have.

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