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What is Adultery under Texas Law?

couple mad at each other

While Texas is a “no fault divorce” state, meaning that a court can grant a divorce without evidence of wrongdoing by either party, adultery is still a ground for divorce under state law. If you or your soon-to-be-ex spouse engaged in adultery while married, that could be a factor in the divorce. Its impact on the divorce might not be as great as one might expect, though, and it will definitely not be as great as it would have been before Texas adopted a no-fault divorce law. An experienced Harris County divorce attorney can advise you of how it could affect your divorce in areas like property division, spousal maintenance, or child custody.

What Is Adultery Under Texas Law?

Texas has a rather specific definition of “adultery” in the context of divorce. While the Texas Family Code does not define it, courts follow the definition established by the Texas Supreme Court in a 1929 decision, Lawler v. Lawler. “Adultery” is “voluntary sexual intercourse of a married person with one not the husband or wife of the offender.”

For an act to be considered adultery, at least in a legal sense that might affect a Texas divorce case, a spouse must have engaged in sexual intercourse. Other acts that might constitute adultery in a moral or ethical sense — romantic or steamy online chats, exchanging explicit photos, kissing, or other acts we will not mention in detail — are not “adultery” for divorce purposes in Texas. Whether sexual contact other than intercourse counts is a matter of some dispute among Texas divorce lawyers.

An act that meets the above definition is legally considered adultery as long as it occurs during the marriage.

Is Adultery a Crime in Texas?

After answering the question “What is Adultery,” let’s examine what it is not. It is not a crime under Texas law. If you or your spouse engaged in adultery during your marriage, no one is going to get arrested or go to jail because of it.

State law also limits the ability to file a civil lawsuit because of alleged adultery. A person whose spouse engaged in adultery used to be able to sue the other person involved in the affair for “alienation of affection” or the more serious “criminal conversation.” This could result in financial liability to the spouse who filed suit. The Family Code now specifically bars both claims.

How Does Adultery Affect Texas Divorce Cases?

Grounds for Divorce

Texas’ no-fault divorce law allows a court to grant a divorce on the basis of “insupportability,” which is to say that the spouses do not get along anymore and do not expect to reconcile. Since adultery is a ground for divorce based on fault, the spouse who files for divorce and alleges adultery has the burden of proving it in court. The mere fact that someone filed for divorce, on the other hand, is usually accepted as sufficient proof of insupportability.

Defenses to Divorce

Texas has limited many of the ways that evidence of adultery can be used in a divorce case. In the past, the spouse who was alleged to have committed adultery could raise several defenses. Texas no longer allows the defense of recrimination, which claims that the spouse alleging adultery also committed it themself. It limits the defense of condonation, which alleges that the complaining spouse already forgave the it, to situations where the court concludes that the parties have a chance of reconciling.

Property Division

Texas law regarding the division of community property does not specifically mention adultery, but it can be a factor in a fault-based divorce. The “general rule of property division” in the Family Code states that a court shall divide property “in a manner that the court deems just and right,” while giving “due regard for the rights of each party.” A court could consider adultery as a factor affecting the rights of the spouse who did not commit adultery, and award that spouse a larger share of the community estate.

Spousal Maintenance

The purpose of spousal maintenance in Texas, also known as alimony, is to provide for a spouse’s needs for a defined period of time after the marriage ends. It is not a punishment for wrongdoing during the marriage. That said, once a court has determined that a spouse is eligible for maintenance, adultery is a factor that it may consider when determining “the nature, amount, duration, and manner of periodic payments.” This could mean increasing or decreasing the amount of maintenance payments, depending on which spouse engaged in the adulterous act.

Child Custody

The public policy of the state of Texas is that children should have “frequent and continuing contact” with their parents, so long as each parent has “shown the ability to act in the best interest of the child.” Adultery could be a factor that affects a court’s determination of a child’s best interests. While it is unlikely that a court would deny a parent access to a child altogether solely because of adultery, it is possible that a court could limit custody or visitation rights, or impose other requirements.

Stacey Valdez is a board-certified family law attorney representing clients in the greater Houston, Texas area. We help people who are going through some of the most difficult ordeals anyone can face, like divorce and child custody disputes. Our clients and their families are our team’s top priority at Stacey Valdez & Associates. We advocate for our clients’ rights and interests with compassion and tireless advocacy. Please contact us today online, or call us at (713) 294-7072 to schedule a confidential consultation to discuss your case. Your first meeting with us is free in most cases.

Categories: Adultery, Divorce