Adultery in Texas - Best Local Lawyer Guide

Texas Adultery Laws: What Does and Doesn’t Count?

Adultery is a devastating experience that can have long-lasting effects on a marriage and can also have legal consequences. Although adultery is not a criminal act in Texas, it can impact divorce proceedings, alimony payments, and child custody. With so much at stake, it’s important to understand what does and doesn’t count as adultery in the eyes of the law.

In this post, we’ll take a deep dive into the definition of adultery in Texas, how it can affect your divorce, and what you need to know to protect yourself and your family. Whether you’re currently going through a divorce or simply want to be informed, this guide will provide you with valuable information about adultery in Texas.

What is Adultery in Texas?

Adultery is a term used to describe a married person engaging in voluntary sexual intercourse with someone other than their spouse. In Texas, adultery is considered a form of marital misconduct and is grounds for divorce. Texas is a “no-fault” divorce state, which means that a spouse does not have to prove that the other spouse is at fault in order to be granted a divorce. However, if one spouse can prove that the other committed adultery, it can have an impact on the outcome of the divorce settlement, particularly with regard to property division and alimony or spousal support.

Adultery only applies to voluntary sexual intercourse and does not include other sexual acts or emotional affairs. Additionally, adultery can only be used as grounds for divorce if it occurred during the marriage, prior to separation or divorce proceedings.

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.

How is adultery defined in Texas law?

In Texas, adultery is defined as voluntary sexual intercourse with someone besides your spouse.

Adultery is not a criminal offense in Texas, but it can have legal consequences in a divorce or custody case.

Texas is a no-fault divorce state, which means that a spouse does not need to prove that the other spouse did something wrong to file for divorce. However, if one spouse can prove that the other committed adultery, it can impact the divorce settlement.

For example, if one spouse spent community property funds on gifts for their lover, the other spouse may be entitled to a larger portion of the community property during the divorce settlement. A spouse who committed adultery may also be ordered to pay spousal maintenance to the other spouse.

Adultery can only impact the divorce settlement if the evidence is presented in court. Hearsay or rumors are not admissible as evidence. If you believe that adultery may impact your divorce case, it’s important to speak with a qualified family law attorney who can advise you on your options.

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.

What are the legal consequences of committing adultery in Texas?

Committing adultery in Texas can have legal consequences, but they are not criminal in nature. In other words, you cannot be arrested or charged with a crime for committing adultery in Texas. However, it can have serious implications in divorce proceedings.

Texas is a “no-fault” divorce state, meaning that a person does not need to show a specific reason for the divorce other than “insupportability,” which means that the marriage has become insupportable because of discord or conflict that destroys the legitimate ends of the marital relationship.

However, adultery can be considered a factor in determining spousal maintenance or alimony, division of property, and child custody issues. If it can be proven that one spouse committed adultery, it may impact how a court divides the couple’s property or awards spousal maintenance. If the adulterous relationship led to the dissipation of marital assets, a judge may award a larger share of the property to the innocent spouse.

Adultery can also impact child custody issues. If a judge believes that a parent’s extramarital affair has negatively affected the children, it may impact the parent’s custody rights.

Does adultery affect divorce proceedings in Texas?

In Texas, adultery can have an impact on divorce proceedings, but it’s not always a decisive factor. If one spouse can prove that the other committed adultery, it can affect the distribution of property and can also be a factor in determining child custody.

Texas is a “no-fault” divorce state, meaning that a spouse doesn’t have to prove that the other did something wrong to file for divorce. However, if the spouse can prove adultery, it can be considered in court when dividing property and assets and determining whether spousal support will be granted.

Adultery can only be used as a factor in a divorce proceeding if it can be proven. This can be done through evidence such as text messages, emails, and witness testimony. It’s important to note that the evidence must be convincing, and circumstantial evidence may not be enough to prove adultery.

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:

Direct evidence or
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.

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.

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:

He’s married to the mother of the child and the child is born during the marriage.
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.
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.
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.

Adultery and Spousal Support in Texas

In Texas, adultery can have a significant impact on spousal support or alimony. The Texas Family Code states that a court may not order spousal support if the spouse seeking support committed adultery. This means that if the court finds that a spouse cheated during the marriage, they may not be eligible to receive spousal support from their soon-to-be ex-spouse.

The court may still grant spousal support if the spouse who committed adultery can show that they are entitled to it despite their infidelity. For example, if the spouse seeking support can show that they have a disability that prevents them from earning a living, or that they were the victim of family violence during the marriage, the court may still order spousal support.

If both spouses committed adultery, the court may still order spousal support if it finds that one spouse is more at fault than the other for the breakdown of the marriage. In this case, the spouse who is less at fault may still be entitled to receive spousal support.

While adultery can have an impact on spousal support in Texas, it’s not always a clear-cut issue. If you’re going through a divorce and are concerned about how your infidelity may affect your ability to receive spousal support, it’s important to speak with an experienced family law attorney who can help you understand your rights and options.

Adultery and Child Custody in Texas

When it comes to child custody cases in Texas, adultery can be a factor that the court considers. However, it is important to note that the court’s main focus is always on the best interests of the child. This means that a parent’s extramarital affairs will only be relevant if they have a direct impact on the child’s well-being.

If a parent’s adultery has caused emotional harm to the child or if the parent’s behavior is likely to negatively affect the child’s development, the court may consider this as a factor when making custody decisions. However, if the affair did not directly impact the child, the court may not consider it at all.

It is also important to note that Texas is a no-fault divorce state, meaning that adultery alone is not enough to grant a divorce. However, it can be a factor in property division and spousal support cases.

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.

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.
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 Section 160.607 states:

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.

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:

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

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 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.

Defending against allegations of adultery in Texas

If you’ve been accused of adultery in Texas, you may feel embarrassed and overwhelmed. Accusations of adultery can have serious consequences, including the end of a marriage, loss of custody, property division issues, and more. However, it’s important to understand that just because someone accuses you of adultery, it doesn’t mean that you are guilty or that the accusations are legally valid. If you’re facing allegations of adultery in Texas, there are several defenses that you may be able to use.

Argue that you did not commit adultery. This may involve presenting evidence that disproves the allegations, such as providing an alibi or showing that the accuser’s claims are false.
Argue that the accuser condoned the adultery. In Texas, if a spouse knew about the adultery and continued to live with the cheating spouse for a period of time without objection, they may be considered to have condoned the behavior. This means that adultery may not be used as a basis for divorce or other legal actions.
Argue that adultery did not have a negative impact on the marriage. In Texas, adultery is only considered grounds for divorce if it causes the breakdown of the marriage. If you can show that the adultery did not harm the marriage, you may be able to avoid legal consequences.

Common Misconceptions about Adultery in Texas

There are several common misconceptions about adultery in Texas that many people believe to be true. However, understanding the truth can help you make better decisions and avoid legal problems. Here are some of the most common misconceptions about adultery in Texas:

Only sexual intercourse counts as adultery – This is not true. Adultery can include any sexual act, including oral sex, anal sex, and even inappropriate touching.
Adultery is always a crime – While adultery is still technically a crime in Texas, it is rarely prosecuted and is more often used as grounds for divorce.
Adultery always affects property division – Adultery does not automatically affect property division in a divorce. However, if adultery caused the breakdown of the marriage, it could be considered in the division of assets.
Adultery always affects child custody – Adultery does not automatically affect child custody. However, if the adultery had a negative impact on the children or the ability of the adulterous spouse to parent, it could be considered in custody decisions.

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.

Role of private investigators in proving adultery

When it comes to proving adultery, private investigators can play a crucial role in gathering evidence to support your case. In Texas, adultery is a fault ground for divorce, meaning that it can be used as a reason for the breakdown of the marriage. However, proving adultery can be a difficult task.

A private investigator can help by conducting surveillance on the suspected cheating spouse and gathering evidence such as photographs, videos, and other documentation. They can also interview witnesses and gather information that can be used in court.

Texas law requires “clear and convincing” evidence of adultery, meaning that the evidence gathered must be strong enough to convince a judge that adultery occurred. Hiring a private investigator can help you gather the evidence needed to meet this standard.

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.

Work with an attorney who has experience handling adultery cases. Your attorney can help you understand how to use the evidence gathered by the investigator and how to present your case in court. While private investigators can play a role in proving adultery, they are just one part of the puzzle. It’s important to work with an experienced attorney who can help you build a strong case.

FAQs about Adultery in Texas

What are my rights in Texas if my husband committed adultery?
How much circumstantial evidence is needed to prove adultery in Texas?
Is sexting considered adultery in Texas?
What is the penalty for adultery in Texas?
Does adultery affect child custody in Texas?
Can you go to jail for adultery in Texas?
What is the penalty for adultery in Texas?
Does adultery matter in Texas divorce?
Does my wife get half if she cheated on me in Texas?

Final thoughts on adultery in Texas

Adultery is a significant issue in Texas law that can have far-reaching consequences. If you are considering divorce and suspect that your spouse has been unfaithful, it is important to understand the legal implications of adultery in Texas and how it may impact your case. Remember that proving adultery can be difficult and requires a substantial amount of evidence. However, even if you are unable to prove adultery, it is still important to work with an experienced divorce attorney who can help you navigate the complex legal landscape of divorce in Texas.

If you are the one who has committed adultery, it is important to understand the potential consequences and work with your attorney to develop a strategy that protects your rights and interests. Depending on your situation, there may be ways to minimize the impact of adultery on your divorce case.

Ultimately, the best way to protect yourself in a divorce case involving adultery is to work with an experienced family law attorney who understands the nuances of Texas law and can help you achieve the best possible outcome. Whether you are the victim of adultery or accused of committing it, a skilled attorney can help you navigate the legal system and protect your rights and interests.