Adultery and Its Impact on Property Division in Texas Divorces

What is adultery in Texas?

Adultery in Texas is voluntary sexual intercourse between a married person and someone other than their spouse. Under Texas law, kissing, sexting, and other sexual contact do not meet the legal definition. If you can prove adultery occurred, it can affect property division, spousal maintenance, 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.

The family law team at Varghese Summersett includes experienced trial lawyers, licensed mediators, and attorneys recognized by Best Lawyers in America and Super Lawyers. Our team has guided hundreds of individuals and families through complex divorce matters, including cases involving adultery, contested property division, and high-net-worth estates. With four Texas offices and more than 70 team members, we have the resources to protect your interests at every stage of the process.

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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.

How Do You Prove Adultery in a Texas Divorce?

Proving adultery in Texas requires showing by a preponderance of the evidence that your spouse had sexual intercourse with someone other than you during your marriage. A preponderance of the evidence means it is more likely than not that the adultery occurred. 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; and 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, and rent payments all count 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.

What Must Be Proven in an Adultery-Based Divorce?

When you file for divorce on fault grounds of adultery, the burden falls on you as the petitioner. You must establish each of the following elements.

First, you must prove a valid marriage existed at the time the alleged adultery occurred. Second, you must show your spouse engaged in voluntary sexual intercourse with another person. Third, the intercourse must have taken place during the marriage. Texas does not recognize legal separation, so even intercourse during a period of separation qualifies.

The standard of proof is a preponderance of the evidence, meaning it is more likely than not that the adultery occurred. This is the same standard used in most civil cases. You do not need to catch your spouse in the act. Circumstantial evidence, such as overnight hotel stays, intimate messages, and financial records, is enough if it leads to a reasonable conclusion.

Your spouse may respond by denying the affair, arguing the evidence is insufficient, or asserting that you condoned or forgave the adultery and continued the marriage. The respondent may also raise recrimination, arguing that you also committed adultery, though Texas courts can still consider both spouses’ conduct in dividing property.

Under Texas Family Code § 7.001, the court must divide community property in a manner that is “just and right.” Proven adultery is one factor the court weighs when deciding whether an unequal division is warranted.

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.

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 and What Doesn’t?

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 behaviors as “adultery” for purposes of property division.

Kissing someone other than your spouse, groping or physical contact short of intercourse, sexting or exchanging explicit photos, emotional affairs without physical intimacy, and using dating apps or websites are NOT adultery under Texas law. Sexual intercourse with someone other than your spouse, including any act of intercourse during the marriage and during separation, IS adultery under Texas law.

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 maintenance, 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 Family Code § 7.001 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. The court will consider whether your spouse spent marital money on the affair, since every dollar spent on gifts, trips, hotel rooms, or supporting the other person is money that should have stayed in your family. The length of the affair matters too. A years-long relationship typically weighs more heavily than a brief encounter.

The court also looks at whether the affair caused your divorce, both spouses’ financial circumstances, and whether you have children whose 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. Protect what matters most. Call (817) 203-2220 to speak with a family law attorney who can evaluate your case.

Does Adultery Affect Alimony in Texas?

Adultery can influence spousal maintenance (what Texas calls alimony), but Texas has strict requirements under Texas Family Code § 8.051. 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 the following must apply: your spouse was convicted of or received deferred adjudication for family violence within two years of filing; you have a physical or mental condition that prevents you from earning enough to support yourself; you were married at least 10 years and can’t earn enough for your basic needs while actively seeking employment; or you’ll have primary custody of a child who needs substantial care, preventing you from working enough.

If you qualify, the judge looks at many factors including your financial resources, work history, education, age, and health. Marital misconduct, including adultery, is part of that calculation under Texas Family Code § 8.052.

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. Generally, adultery by itself doesn’t change custody (called “conservatorship” in Texas). Courts decide custody based on what’s best for your children under Texas Family Code § 153.002, 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. The court may consider whether the new partner poses any risk, whether your spouse neglected parenting responsibilities to spend time on the affair, and whether your children were introduced to the other person inappropriately or too soon. Exposure to adult situations and the emotional impact on your children also factor into the court’s analysis.

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. Get clarity about your options today. Call (817) 203-2220.

What to Expect From Varghese Summersett

When you reach out to Varghese Summersett, you’ll speak with someone who listens. Our family law team includes partners, senior associates, and of counsel attorneys with decades of combined experience handling divorce cases involving adultery. Every case starts with a thorough review of your situation, your goals, and the evidence available.

Divorce cases involving adultery are more complex than no-fault divorces. You’re not just dividing assets; you’re building a case. Our attorneys are skilled negotiators, experienced litigators, and licensed mediators who know when to push for a better deal and when to take a case to trial. We prepare every case as if it will go before a judge, because preparation is what drives results.

We understand that behind every divorce case is a person whose life has been turned upside down. You don’t have to have everything figured out before you call. That’s what we’re here for.

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Frequently Asked Questions About Adultery and Divorce in Texas

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 under Texas Family Code § 6.003. You can file for divorce citing adultery as the reason. You’ll need to prove it happened by a preponderance of the evidence, 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 under Texas Family Code § 154.125. Adultery doesn’t change that formula. 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.

Take the first step toward resolution. Call the family law team at Varghese Summersett at (817) 203-2220.