Adultery sounds antiquated as grounds for divorce in Texas today. Adultery is not a crime in Texas. However, if a spouse cheats during the marriage, it can be grounds for a ruling in favor of the other spouse, depending on how the matter impacts the marriage and how it is presented to the judge.
Texas Family Code section 6.003 states only that “The court may grant a divorce in favor of one spouse if the other spouse has committed adultery.” Adultery is usually defined as voluntary sexual contact with another individual outside the marriage, or during a period of legal separation. The key factors are that the parties be married, that the extramarital contact is voluntary (i.e., not a result of coercion or assault), and without the consent of the other party in the marriage (“swingers” typically cannot claim adultery).
The San Antonio Divorce attorneys of Higdon, Hardy & Zuflacht, L.L.P. understand that the pain of betrayal caused by infidelity in a marriage cuts at the heart of a relationship. We want to help you make your case with the minimum of additional pain and confusion.
Claiming Adultery Versus No-Fault Divorce
The primary reason to claim adultery in a divorce action is to claim a greater proportion of the community assets. When claiming an adultery-based divorce, the party is claiming that the marriage would still be intact were it not for the actions of the adulterous party, hence the divorcing party is entitled to a larger share of the property.
Texas allows no-fault divorce, in which both parties agree that neither side is to blame for their marriage being unable to move forward, and they simply want to divide their property equitably and go their separate ways. In a no-fault divorce, the parties are not able to claim that one side’s behavior led to the problems. Thus, if your spouse cheated on you, it would not matter in a no-fault divorce.
In an adultery-based divorce, one party is specifically claiming that their spouse’s infidelity has made the marriage so intolerable they can no longer live together. They are also claiming that no other method of resolution has worked, such as marital counseling. The important thing to remember in fault-based divorce is that there is no reasonable expectation of resolution. If you and your spouse believe you can still work through your issues, you should wait to file your divorce.
Impact of Adultery on Divorce
People sometimes believe that claiming adultery will make the divorce faster or easier to prove, or that they will automatically receive more of the property or alimony. This may have been true in the past, or in other states, but it is not true in Texas. Texas does not grant alimony unless certain factors are met, one of which is that the party requesting alimony cannot meet their financial needs without it.
Texas is a community property state and will divide property equally, absent a showing by the claiming party that they deserve a larger percentage. The court will not make a punitive award against an adulterous party.
However, if the claiming party can show any of the following things, the courts will reduce the adulterous party’s share, based on the evidence provided:
- Waste of community assets. If the claiming party can show that the other party spent community funds in carrying on their affair, the court may restore those funds to the claimant. If the adulterous party has spent money on travel, gifts, and entertainment for their extramarital interest, this can be some of the easiest money to recover.
- Future benefits. If the claimant can show that the adultery is the only reason the marriage is being dissolved, then there may be a claim for future benefits of the marriage, such as community income, insurance benefits, and so on.
- Custody and visitation. Having an affair will not impact the other spouse’s right to reasonable custody and visitation. However, a family court judge may take into consideration factors such as whether the adulterous party was spending time with their paramour instead of the children, or if they knowingly exposed their children to hazardous individuals or situations.
For instance, if a father was having a discreet affair with another woman, it might not be an issue. However, if the father was skipping family weekends to stay with another woman or took the children without their mother’s knowledge and let them sit in the parking lot while he visited his friend in the strip club, the judge might have a different opinion.
Proving Adultery in Divorce
As with any issue in an at-fault divorce, the burden of proving adultery falls on the spouse making the claim. Because people normally are discreet about their affairs and make some effort to hide it from their spouses, it is difficult to catch a spouse “in the act” and end the case there. The days of having a private detective burst into the hotel room with camera flashing are long past.
The attorneys at Higdon, Hardy & Zuflacht, L.L.P. recommend you that discuss your concerns with a knowledgeable lawyer before deciding to file a divorce based on adultery, so that they can guide you towards the correct information to collect. Suspicion, innuendo, and suggestive social media posts are not sufficient.
- Admissions from the spouse or the paramour are the best evidence, even if later recanted. Admissions from the spouse to another reliable party may be used under some circumstances.
- Texts, emails, and unambiguous social media messages can prove a relationship was going on.
- Financial records such as bank statements, online transactions, and travel receipts can indicate money was being spent outside of the community.
- Eyewitness accounts from reliable witnesses. The paramour’s ex may not be a reliable witness, for instance.
At Higdon, Hardy & Zuflacht, L.L.P., we know that adultery harms a marriage at its deepest core: the vow to forsake all others. We want to help you get through this as painlessly as possible, and with the best outcome we can obtain for you. Contact our attorneys today at (210) 349-9933 or at our website for a consultation on the best way to handle your case.