Adultery has significant consequences in a Texas divorce, as it’s a fault ground that gives a judge the power to divide your property in a way that favors the non-cheating spouse. While the legal system doesn’t heal emotional wounds, it does recognize the damage caused by infidelity and provides specific remedies.
An experienced Texas family law attorney uses this information to build a legal strategy to protect your financial future and parental rights.
What Legally Constitutes Adultery in Texas?
In the context of a Texas divorce, adultery has a specific legal meaning. It refers to the voluntary sexual intercourse of a married person with someone other than their spouse.
Emotional affairs, sending inappropriate text messages, or spending time with another person are not, by themselves, considered legal adultery. However, these actions aren’t irrelevant. They often serve as powerful circumstantial evidence that a judge uses to conclude that adultery did occur.
A court looks at the entire picture when making a decision.
Adultery as a Fault Ground for Divorce
Texas is a no-fault divorce state, which means you don’t have to prove that your spouse did anything wrong to get a divorce. You may simply state that the marriage has become insupportable because of discord or conflict.
However, the law also gives you the option to file for divorce on specific fault grounds, and adultery is one of the most powerful ones.
Choosing to file for divorce on the fault ground of adultery is a strategic decision. You’re telling the court that your spouse’s actions are the reason the marriage ended.
Presenting this fact to the court gives the judge the discretion to make rulings that aren’t strictly 50/50, particularly when dividing your assets and debts.
The Main Consequence: Dividing Community Property
The most direct legal consequence of adultery in a Texas divorce relates to the division of your community property. In a standard no-fault divorce, a judge divides your marital estate in a way that is just. This usually results in a division close to a 50/50 split of your assets.
When you prove adultery, a judge can award a disproportionate share of the community property to the wronged spouse. The court recognizes that the infidelity breached the trust and promises of the marital relationship.
What Is a Disproportionate Share?
A disproportionate share simply means the property division is intentionally unequal. For example, instead of splitting your assets 50/50, a judge might award one spouse 55% or 60% of the community estate.
The exact percentage depends on the specifics of your case, including the nature of the affair and whether community funds were wasted on it. It’s rare for a court to award a truly extreme split, like 80/20, based on adultery alone.
The goal is to reach a division that the judge deems fair under the circumstances. A skilled family law attorney presents the evidence of the affair in a way that demonstrates to the judge why a disproportionate share is just and right in your specific case.
Waste Claims
A key financial consequence of adultery is the potential for a waste claim, also known as fraud on the community. This happens when the cheating spouse uses community property—funds belonging to both of you—to benefit their affair partner without your knowledge or consent.
When you make a waste claim, you’re asking the court to identify the funds that were spent on the affair and to reimburse your share of the community estate for that amount.
Common examples of waste that a court considers include:
- Expensive Gifts: Money spent on jewelry, cars, or other luxury items for the affair partner.
- Travel and Vacations: Funds used for hotel stays, plane tickets, and other travel expenses with the affair partner.
- Support and Housing: Payments for rent on an apartment, cash transfers, or covering the affair partner’s living expenses.
Your attorney helps you trace these expenditures to prove the waste claim. If successful, the judge may award you a larger share of the remaining property or order a cash payment from your spouse’s separate property to make the community estate whole again.
How Adultery Affects Child Custody and Visitation
A common fear is that adultery may affect child custody rights. In Texas, all decisions regarding children are made based on the child’s best interests. The law doesn’t automatically assume a parent who committed adultery is an unfit parent.
When making custody determinations, a judge looks at a parent's actions, not their marital fidelity. Infidelity only impacts a child custody decision when the parent’s behavior surrounding the affair has put the child in harm’s way, either emotionally or physically.
For example, if a parent neglected their children because they were preoccupied with their affair, a judge takes that fact very seriously. The key is to connect the act of adultery to a negative impact on the child.
When the Affair Puts a Child at Risk
A court is very likely to limit a parent’s possession or access if the circumstances of the affair create an unstable or dangerous environment.
Situations a judge scrutinizes include:
- Exposure to the New Partner: A judge often views it as harmful when a parent introduces a child to an affair partner, especially during a contentious divorce.
- Childcare and Neglect: Leaving a child in the care of an unknown affair partner is considered a form of neglect that directly endangers the child's safety.
- Inappropriate Conduct: The court considers any displays of overly affectionate behavior with a new partner in front of a child, or any conflict related to the affair, to be emotionally damaging.
- Parental Alienation: A parent who uses details about the affair to speak poorly about the other parent engages in behavior that is against the child's best interest.
If the cheating spouse's new partner has a criminal record or a history of substance abuse, it’s a major red flag for the court. Your attorney can present evidence to show how your spouse’s choices related to the affair have created an environment that isn’t in your child’s best interest.
Proving Adultery in a Texas Divorce
You don’t need a photograph or video of your spouse with their affair partner to prove adultery in court. Direct evidence is rare. Texas courts rely on circumstantial evidence to reach a conclusion about infidelity.
The standard of proof in a civil case is preponderance of the evidence, which means your lawyer must show it’s more likely than not that your spouse committed adultery.
An experienced attorney knows how to gather various pieces of evidence and present them to the judge to create a clear and convincing picture.
Evidence used to prove adultery often includes:
- Electronic Communication: Text messages, emails, direct messages on social media, and dating app profiles.
- Financial Records: Credit card statements and bank records showing payments for hotels, gifts, or dinners.
- Witness Testimony: Testimony from friends, family members, or a private investigator who observed the cheating spouse with their affair partner.
The more pieces of circumstantial evidence you have, the stronger your case becomes. It’s not about finding one smoking gun but about building a compelling narrative from many different sources.
Does the Timing of the Affair Matter?
The timing of the affair is a very important factor for a Texas court. Adultery that occurs before you and your spouse have separated is viewed much more seriously than infidelity that begins after you are living apart and the marriage is functionally over.
An affair that directly led to the breakup of the marriage is a key fact that supports your request for a disproportionate share of the property. For adultery that occurs post-separation, a judge is less likely to use it to divide property unequally.
However, any community funds spent on an affair at any time before the divorce is final are subject to a waste claim.
How a Lawyer Helps With Adultery in a Texas Divorce
Discovering your spouse’s infidelity is a traumatic experience. An attorney is your strategic advisor, helping you move from emotion to action. They provide an objective view of your situation, use the law to protect your rights, and work toward a just outcome.
Investigating and Gathering Evidence
A divorce attorney has legal tools for discovering information that you cannot access on your own. They use formal discovery requests, including depositions and subpoenas, to legally obtain financial records, phone records, and other evidence of the affair and any wasted community funds.
Developing a Legal Strategy
Your attorney assesses the strength of your evidence and advises you on the best path forward. They help you decide whether to file for divorce on the fault ground of adultery or to use the evidence as leverage in settlement negotiations.
Having proof of infidelity gives you a significant advantage when negotiating the terms of your divorce.
Valuing and Proving a Waste Claim
Calculating the total amount of community property wasted on an affair requires meticulous financial investigation. Your lawyer can analyze bank statements, credit card bills, and other records to trace and quantify every dollar.
They present this claim to the court to demand that your share of the community estate be reimbursed.
Protecting Your Parental Rights
If the affair has the potential to impact your children, your attorney focuses the legal argument squarely on their best interest. They gather evidence about how the cheating spouse’s behavior has created an unsafe or unstable environment.
This keeps the focus on protecting your children rather than on simply punishing your spouse.
Providing Objective Advice
During one of the most difficult times in your life, your attorney is a source of calm and rational guidance. They explain the law, manage your expectations about potential outcomes, and help you make smart, strategic decisions.
Their role is to help you achieve the best possible long-term result, free from the moment's emotion.
FAQ for What Are the Consequences of Adultery in a Texas Divorce?
What Are the Biggest Consequences of Adultery in a Texas Divorce?
The two biggest consequences relate to property and, in some cases, children. A judge may award the non-cheating spouse a larger, disproportionate share of the community property. Additionally, if funds were spent on the affair, the court may order the cheating spouse to reimburse the community estate.
Adultery only affects custody if the behavior puts the child’s emotional or physical well-being at risk.
Do I Have To Prove Adultery to Get a Divorce in Texas?
No: Texas is a no-fault state, meaning you may get a divorce without proving that either spouse did anything wrong by stating the marriage is insupportable.
You only need to prove adultery if you choose to file on this fault ground, typically to seek a disproportionate share of the community property.
How Much More Property Do You Get If Your Spouse Cheated?
There is no set percentage. The decision is up to the judge’s discretion based on what they believe is right under the circumstances of your case. A common outcome is an unequal split in the range of 55/45 to 60/40 in favor of the wronged spouse, though this varies widely depending on the evidence.
Can My Spouse’s Affair Partner Be Forced To Testify?
Through the discovery process, your attorney may depose the affair partner. A deposition is sworn testimony given outside of court.
Your attorney may ask the person questions under oath about the nature of their relationship with your spouse and any money or gifts they may have received.
Does It Matter Who First Files for Divorce in Texas?
Strategically, yes, it often matters who files first. Filing first allows you to present your story to the court at the outset. It also allows you to request a standard temporary restraining order that prevents your spouse from hiding assets, incurring new debt, or removing children from the state.
Move Forward With Strength and Strategy
The end of a marriage due to infidelity is a painful journey, but you don’t have to navigate it without legal support or protection. The law provides a clear path to hold a cheating spouse accountable. By taking strategic legal action, you can secure your financial future and protect your family.
You have the power to turn a story of betrayal into a new beginning built on security and strength. For a confidential consultation to discuss your rights and legal options, contact the experienced divorce team at Bailey & Galyen, a trusted Texas personal injury lawyer and family law firm, at (817) 345-0580 today. We are here to help you move forward.