What is adultery in Texas?
Adultery in Texas is sexual intercourse between a married person and someone other than their spouse. Kissing, sexting, and other sexual contact don’t meet the legal definition, even though the betrayal feels just as real. If you can prove adultery occurred, it can affect property division, alimony, and other parts of your divorce.
If you’re reading this, you’re probably dealing with something incredibly painful. Discovering a spouse’s infidelity shakes everything you thought you knew about your marriage and your future. You deserve answers, and you deserve to know where you stand legally.
Texas Family Code § 6.003 lists adultery as grounds for divorce but doesn’t define it. The legal definition comes from decades of Texas case law. Courts have consistently held that “adultery” means actual sexual intercourse, not just romantic or physical contact. We know that distinction might feel frustrating when you’re hurting, but understanding exactly what the law says will help you make informed decisions about your next steps.
The family law team at Varghese Summersett has helped hundreds of people in your situation. We understand that behind every divorce case is a person whose life has been turned upside down. If you’re ready to talk through your options, we’re here to listen. Call us at 817-900-3220 for a free consultation.
How do you prove adultery in a Texas divorce?
Proving adultery in Texas requires “clear and convincing evidence” that your spouse had sexual intercourse with someone other than you during your marriage. This is a higher standard than typical civil cases. Rumors, suspicions, and gut feelings aren’t enough, even when you know in your heart what happened.
We understand how difficult this is. You’re being asked to document and prove something deeply personal and painful. But gathering evidence now protects you later. Texas courts accept both direct and circumstantial evidence of adultery.
Evidence that can help prove adultery includes:
- Text messages, emails, and direct messages showing a romantic or sexual relationship
- Photos or videos documenting the affair
- Hotel receipts, credit card statements, or financial records showing unexplained expenses
- Social media posts, check-ins, or tagged photos
- GPS or location data showing visits to the other person’s home
- Testimony from people who witnessed the relationship
If you’re seeking a larger share of property because of the adultery, you’ll also need to show that the affair caused your divorce or that your spouse spent marital money on the relationship. Gifts, trips, dinners, rent payments, all of it counts as “waste” of community assets under Texas law. We know it’s painful to add up what your spouse spent on someone else, but those numbers matter in court.
Is adultery during separation still adultery in Texas?
Yes, and this catches many people off guard. Texas doesn’t recognize legal separation. In the eyes of the law, you’re married until a judge signs your final divorce decree. That means any sexual relationship your spouse has during separation, even if you’ve lived apart for months or years, still counts as adultery.
This also means you need to be careful. If you’ve separated and are thinking about dating, know that a new relationship before your divorce is final could be used against you. We’ve seen cases where both spouses’ post-separation relationships became issues in the divorce. It’s not fair, but it’s the law.
If you’re separated and unsure how to protect yourself, talk to an attorney before making decisions you can’t undo.
What counts as adultery in Texas? What doesn’t?
Here’s something that frustrates many of our clients: Texas law draws a very specific line. Adultery requires sexual intercourse. Many things that feel like cheating, that would absolutely end a marriage, don’t meet the legal definition.
We hear you. Finding out your spouse has been sexting someone else, carrying on an emotional affair, or meeting someone for secret dates hurts just as much as a physical affair. The betrayal is real. But Texas courts won’t classify these as “adultery” for purposes of property division.
These are NOT adultery under Texas law:
- Kissing someone other than your spouse
- Groping, touching, or physical contact short of intercourse
- Sexting or exchanging explicit photos
- Emotional affairs without physical intimacy
- Using dating apps or websites
These ARE adultery under Texas law:
- Sexual intercourse with someone other than your spouse
- Any act of intercourse during the marriage, including during separation
If your spouse’s infidelity didn’t include intercourse, you can’t use adultery as grounds for divorce or seek extra property based on adultery specifically. But other forms of betrayal may still matter to your case. An experienced attorney can help you understand all your options.
Is adultery illegal in Texas?
No. Adultery isn’t a crime in Texas. Your spouse won’t be arrested or face criminal charges for cheating. We know that might feel unjust when you’re the one dealing with the fallout.
But while adultery isn’t criminal, it does have real consequences in family court. Texas allows “fault-based” divorce, meaning you can cite adultery as the reason your marriage ended. Proving it can affect how the judge divides your property, whether you receive spousal support, and sometimes even custody arrangements.
The legal system may not punish your spouse the way you wish it would, but it does give you tools to protect yourself financially.
How does adultery affect property division in Texas?
This is often the most important question for our clients, and the answer can make a real difference in your financial future.
Texas is a community property state. In most cases, assets acquired during marriage belong to both spouses equally. But Texas law also says judges should divide property in a “just and right” manner, and that doesn’t always mean 50/50. When one spouse proves the other committed adultery, the court can award the faithful spouse a larger share of the estate.
How much larger depends on your specific situation:
- Did your spouse spend marital money on the affair? Every dollar spent on gifts, trips, hotel rooms, or supporting the other person is money that should have stayed in your family.
- How long did the affair last? A years-long relationship typically weighs more heavily than a brief encounter.
- Did the affair cause your divorce? Courts want to understand the connection between the infidelity and the end of your marriage.
- What are both spouses’ financial circumstances? The court considers who needs what to move forward.
- Do you have children? Their needs factor into how assets are divided.
Community property includes bank accounts (even ones in just your spouse’s name), income earned during marriage, your home, vehicles, retirement contributions, and investments. We’ve seen property divisions shift significantly when adultery and wasted assets are proven effectively.
You worked hard for what you have. An affair shouldn’t leave you with less than you deserve.
Does adultery affect alimony in Texas?
Adultery can influence spousal maintenance (what Texas calls alimony), but Texas has strict requirements. Proving your spouse cheated won’t automatically mean you receive support payments.
First, you must show that you can’t meet your “minimum reasonable needs” on your own. Then, at least one of these must apply:
- Family violence: Your spouse was convicted of or received deferred adjudication for family violence against you or your child within two years of filing for divorce, or while the divorce was pending.
- Disability: You have a physical or mental condition that prevents you from earning enough to support yourself.
- Long marriage: You were married at least 10 years, can’t earn enough for your basic needs, and are actively looking for work or developing job skills.
- Caretaker: You’ll have primary custody of a child who needs substantial care, preventing you from working enough to support yourself.
If you qualify, the judge looks at many factors: your financial resources, work history, education, age, and health. Marital misconduct, including adultery, is part of that calculation.
Adultery matters most when your spouse wasted significant money on the affair. That waste supports both a larger property award and potentially higher maintenance to make up for what was lost.
Does adultery affect child custody in Texas?
This is a question we hear from nearly every parent dealing with infidelity: “Will this affect my kids?”
Generally, adultery by itself doesn’t change custody (called “conservatorship” in Texas). Courts decide custody based on what’s best for your children, not as punishment for a parent’s mistakes. A spouse can be unfaithful and still be a good parent.
But the affair can matter if it affected your children:
- Does the new partner pose any risk to your kids?
- Did your spouse neglect parenting responsibilities to spend time on the affair?
- Were your children introduced to the other person inappropriately or too soon?
- Were your kids exposed to adult situations they shouldn’t have witnessed?
- How have your children been affected emotionally by learning about the infidelity?
A parent who kept the affair completely separate from the children and maintained their parenting responsibilities probably won’t face custody consequences. But a parent who brought the kids around their affair partner, missed parenting time, or put children in uncomfortable situations may see the judge take notice.
Your children’s wellbeing comes first. If you have concerns about how your spouse’s behavior has affected them, share those concerns with your attorney.
You don’t have to face this alone
Dealing with a spouse’s infidelity while trying to understand divorce law is exhausting. You’re grieving a marriage while being asked to make major financial and legal decisions. That’s an enormous burden.
The family law team at Varghese Summersett has walked alongside hundreds of people through this difficult time. We’ve seen what works in Texas courts. We understand both the legal strategy and the human side of what you’re going through.
Divorce cases involving adultery are more complex than no-fault divorces. You’re not just dividing assets; you’re building a case. The right attorney can help you gather evidence, present it effectively, and fight for a fair outcome.
When you’re ready, call us at 817-900-3220 for a free consultation. We’ll listen to your story, explain your options honestly, and help you see a path forward. You don’t have to have everything figured out. That’s what we’re here for.
Frequently Asked Questions
Can I get a divorce in Texas just because my spouse cheated?
Yes. Texas allows fault-based divorce, and adultery is one of the recognized grounds. You can file for divorce citing adultery as the reason. You’ll need to prove it happened, but you don’t need your spouse’s permission or agreement to end the marriage.
How long do I have to prove adultery in my Texas divorce?
There’s no specific deadline, but the adultery must have occurred during your marriage. Affairs before you married or after your divorce was final don’t count. Courts generally focus on recent infidelity, though older affairs can still be relevant depending on your situation.
Can my spouse’s adultery affect how much child support I receive?
No. Texas calculates child support using a formula based on the paying parent’s income and number of children. Adultery doesn’t change that math. However, if your spouse wasted marital assets on an affair, you may receive a larger share of property, which helps your overall financial picture.
What if we both had affairs?
Texas courts can still consider adultery even when both spouses were unfaithful. The judge may look at who cheated first, how extensive each affair was, and whether either spouse wasted community money. Both partners being at fault doesn’t automatically cancel out the impact of infidelity on your case.
Do I need to catch my spouse in the act to prove adultery?
No. You don’t need photos or eyewitness accounts of the affair itself. Circumstantial evidence works. Courts regularly accept text messages, emails, financial records, and witness testimony. You need enough evidence to convince a judge that adultery more likely than not occurred.
