How Does Adultery Affect Divorce in Texas?

• Adultery and no-fault divorce
• The effect of adultery on marital assets
• When proof of adultery is necessary
• Why a fault-based divorce is chosen
• Adultery and spousal support
• References

Adultery in and of itself is not a punishable crime, but if you can prove your spouse’s infidelity was directly responsible for the end of your marriage, a Texas court will potentially award you a greater share of the marital assets as well as a greater degree of custody rights over any children from the relationship. 

Adultery and no-fault divorce in Texas

Texas is a no-fault divorce state, which means no wrongdoing must be proven for either spouse in a marriage to be granted a divorce. Most of the divorces that take place in Texas are no-fault divorces (also referred to as uncontested divorces). 

You can get a no-fault divorce even if your spouse did something to prompt the divorce, such as adultery. Legally, adultery is defined as voluntary sexual relations with someone outside the marriage. It is understood that the affair is conducted without the consent or knowledge of the other spouse. Under Texas law, residents of Texas may file for divorce on the grounds of adultery even after they have legally separated from their spouses.  

The effect of adultery on marital assets

If you feel that your spouse’s adultery is grounds for divorce – that their infidelity was directly responsible for the breakdown of your marriage – and can convince a judge of this, the court may award you a greater share of the marital assets. This is more likely to occur if a disparity exists between your earning potentials or if your spouse used marital assets to further their adultery.

The Texas Family Code requires what is known as a “just and right division” of marital assets. This gives the courts the right to choose how to allocate property when spouses divorce. If you can prove that your spouse cheated on you, the court might order your spouse to reimburse you for “wasted assets.” For example, this could be money that your spouse spent on the affair that would otherwise have been spent on you, your children, or general family expenses. 

Watch: If Your Ex Cheated, Can You Get More Money In Divorce?

When proof of adultery might be necessary

As with all cases of divorce, the court’s highest priority is the well-being of any children in the marriage.

Adultery does not typically impede the parenting abilities of each spouse (even the spouse responsible for the adultery), but if it can be proven that your spouse’s adultery harmed your children (or if the court believes that it did, even without proof), this might affect your spouse’s custody or visitation rights.

If your spouse does not admit to infidelity, you will likely have to prove that they did cheat on you and that their extramarital affair directly led to the breakdown of the marriage. Proof can be in the form of text messages or emails, social media pictures and videos, bank and credit card statements, or eyewitness accounts.

Clear and positive evidence

Texas law requires that any evidence submitted to claim that your spouse was carrying out an affair must be “clear and positive.” For example, if you have evidence that your spouse was living with a romantic partner after you separated (and before the divorce was finalized), text messages where your spouse admitted to the affair, or anything concrete that proves the affair, this is important. Courts are unlikely to consider speculation or hearsay (unproven rumors from a third party) as evidence of adultery.

Why do people choose fault-based divorce in Texas?

There are many reasons why people might go through the process of petitioning for a fault-based divorce. Some spouses do not want to endure the 60-day separation period that is required as part of a no-fault divorce. 

There is also a potential financial benefit since you may be awarded a greater share of the marital assets or more spousal support if you can prove that your spouse cheated on you and that their infidelity led to your separation and subsequent divorce. 

If both spouses are at fault – for example, if infidelity was a problem for both partners in the marriage, and the mutual lack of trust and deception was what led to the marriage ending – the court will grant the divorce to the spouse who was least at fault under a legal principle known as comparative rectitude. To determine this, a court might look at who engaged in an affair first and whether the other partner’s own adultery was spurred by the initial affair and the problems it caused. 

Adultery and spousal support

In Texas, alimony or spousal support is known as spousal maintenance, and it is only allowed in very limited situations.

If you are requesting maintenance payments from your ex, a court is unlikely to consider it unless you don’t have enough of your own assets to provide for “minimum reasonable needs” (such as food, clothing, housing, and utility expenses) and one of the following conditions:

• Your ex was recently convicted of domestic violence against you or your children.
• The marriage lasted a minimum of 10 years, and even after making serious attempts to develop job skills, you aren’t able to earn enough to meet the minimum reasonable needs for food, shelter, clothing, and similar expenses.
• You are unable to earn enough to meet your minimum expected needs because you or your child have a physical or mental disability, and one or both of you need significant care and supervision. 

If this describes your situation, the court will decide how much spousal support to award you and for how long. The amount and duration of the award will be based on a number of factors, including the extent and damage of your spouse’s adultery. 

In conclusion, if your spouse’s adultery is what drives you to file for divorce in Texas, and if you can prove that their adultery damaged your marriage beyond repair, this might influence the amount and duration of the spousal support the court awards you. 

However, this would happen only if the circumstances of your case met the other requirements for spousal maintenance. You might still be granted the divorce, but the court might deny any petition for spousal maintenance or support. 

References