Adultery and Divorce in Texas

Unlike in days gone by, adultery is no longer illegal. However, just because something isn't against the law, doesn't mean it won't affect your divorce. That's because, in Texas, the law still allows individuals to file for divorce under fault-based grounds. And—as you might have already guessed—adultery makes the shortlist of acceptable faults.

What is Adultery?

According to the Texas Family Code, adultery occurs when a married person has voluntary sex with someone other than their spouse. Historically, this infidelity was considered a pretty serious offense, but getting caught with your trousers down with someone other than your spouse is no longer punishable by death or imprisonment. But like we hinted above, that doesn't necessarily make it a good idea. Besides being unsavory, these actions have the potential to trigger fault-based divorce grounds.

Adultery's Role in a Texas Divorce

When filing a petition for divorce, your complaint must include the reason you want a split. These are called "grounds," which can either be no-fault or fault based. In the Lone Star state, there are four grounds for fault, including: Cruelty, Felony conviction, Abandonment, and Adultery. When one of these grounds is cited in a divorce complaint, judges are allowed to evaluate the "bad behavior" of one spouse and hold them financially liable for the marital breakup, as they see fit.

Meeting the Legal Standard of Adultery

If fault is something you're committed to litigating, you should be prepared to provide proof that: the unsavory act did in fact occur; it happened during the course of your marriage; and this adultery was the cause of your breakup. Unfortunately, the very nature of cheating typically requires some amount of discretion, so it's likely your spouse made at least a cursory effort to cover their tracks, making evidence tricky to come by.

Adultery's Impact on Divorce in Texas

While the legal standard for adultery can be difficult to prove, it can be worth pursuing in some situations because of its impact on marital property. Texas is a community property state, so under normal circumstances, what you and your spouse acquire during the marriage belongs to both equally. However, if a judge chooses to uphold your fault allegations, that can all change quickly. In an adulterous divorce, judges have the discretion to rearrange the rules of community property, give your spouse a "less than fifty percent" share of community property, or assign them a larger share of marital debt. It might also significantly impact how much spousal support they're obligated to pay.

Adultery and Custody

One thing that is not impacted by adultery are decisions regarding children, such as child support, custody, and visitation. When evaluating these issues, courts look at what would be in the child's overall best interest. In Texas, the underlying presumption is that a child's best interests are served by having a loving, healthy relationship with both parents whenever possible. The only way adultery might affect custody is if the affair somehow exposed your child to extenuating harm.

Fault-Based Grounds: A Cautionary Tale

Acquiring a divorce on fault-based grounds can be difficult, costly, and time-consuming. It's also incredibly emotional. Once fault is on the table, things can quickly spiral into an environment of toxic mudslinging. Because of these reasons, even if infidelity did play a part in the dissolution of your marriage, sometimes it's best to simply leave the allegations alone and file under no-fault grounds.

Divorce Attorneys in Texas

Whether or not a fault-based divorce is right for your situation is a matter of facts. If you're uncertain, North Texas Family Lawyers can review your case to determine the likely success of fault grounds in your circumstances. Call us today at (972) 436-8000, or schedule a consultation online with one of our experienced family law attorneys, and let us help you establish what grounds might be right for you.