Adultery and Divorce in Texas: What You Need to Know

Adultery and Divorce in Texas: What You Need to Know

Texas is a no-fault divorce state, but adultery is not legally irrelevant. Courts can consider fault when dividing property and deciding spousal maintenance, and understanding exactly how that works can make a significant difference in the outcome of your case.

At Pfister Family Law, John J. Pfister Jr. — board-certified in family law by the Texas Board of Legal Specialization — regularly represents clients in divorce cases where fault, including adultery, is a central issue.

Can You File for Divorce Based on Adultery in Texas?

Yes. Texas allows both no-fault and fault-based grounds for divorce. The most common ground for divorce in Texas is insupportability, which means the marriage has become insupportable due to discord or conflict. No proof of wrongdoing is required.

However, Texas law also allows a spouse to file for divorce on the ground of adultery. Under the Texas Family Code, a court may grant a divorce in favor of one spouse if the other spouse has committed adultery.

Filing on fault grounds does not guarantee a different outcome, but it opens the door for arguments about how the fault should affect property division and financial awards.

Does Adultery Affect Property Division in Texas?

This is where adultery has the most practical impact on a Texas divorce case.

Texas is a community property state, which means most assets and debts acquired during the marriage are divided in a manner the court considers just and right. That standard does not automatically mean equal. Courts have broad discretion when dividing marital property, and fault in the breakup of the marriage is one of the factors a judge may consider.

When adultery is proven, a court may award the non-adulterous spouse a larger share of the marital estate. The size of the disproportionate award depends on the facts of the case, the extent of the marital waste or harm caused, and the overall financial circumstances of both spouses.

In high-asset divorces, even a modest shift in the percentage of property awarded can translate into substantial dollar differences.

Does Adultery Affect Spousal Maintenance in Texas?

Yes, in two important ways.

First, fault in the breakup of the marriage is one of the statutory factors a Texas court must consider when determining whether to award spousal maintenance and in what amount. A spouse who committed adultery may be less likely to receive maintenance, and the other spouse may have stronger grounds to argue that maintenance is warranted.

Second, adultery that resulted in the dissipation of marital assets, such as spending significant marital funds on an affair partner, may be factored into both the property division and the maintenance analysis.

What Counts as Proof of Adultery in Texas?

Texas courts do not require a confession or direct eyewitness testimony to establish adultery. Adultery can be proven through circumstantial evidence, which means showing that the opportunity and inclination existed.

Evidence commonly used in these cases includes:

• Text messages, emails, and social media communications

• Hotel records, travel records, or credit card statements

• Testimony from witnesses

• Phone records

• Financial records showing unexplained expenditures

The burden of proving adultery falls on the spouse making the claim. Working with an experienced family law attorney early in the process is important if you intend to pursue fault-based grounds.

Can I Sue My Spouse's Affair Partner in Texas?

No. Texas does not recognize civil claims for alienation of affection or criminal conversation, which are the legal causes of action that allow spouses to sue a third party for interfering in a marriage. Those claims were eliminated in Texas decades ago.

Your legal remedies in an adultery situation are limited to the divorce proceeding itself, specifically through fault-based property division and spousal maintenance arguments.

What If Both Spouses Committed Adultery?

If both spouses engaged in adultery, the court will consider that in its overall assessment of fault and equity. Mutual fault does not automatically cancel out the impact of one spouse's conduct, but it does reduce the likelihood that either spouse will receive a significant property advantage based on fault alone.

Each case turns on its specific facts, and courts have wide discretion in how they weigh competing fault claims.

Does Adultery Affect Child Custody in Texas?

Generally, adultery has limited direct impact on child custody decisions in Texas. Courts determine custody based on the best interests of the child, which focuses on each parent's ability to provide a stable, nurturing environment.

Adultery itself does not disqualify a parent from custody. However, if the conduct related to the affair created an unstable or harmful environment for the child, such as exposing the child to inappropriate situations or neglecting parenting responsibilities, a court may consider those specific circumstances in its custody analysis.

Frequently Asked Questions About Adultery and Texas Divorce

Does Texas require proof of adultery to file on fault grounds?
No direct proof such as a confession is required. Texas courts accept circumstantial evidence showing opportunity and inclination. Documented communications, financial records, and witness testimony are commonly used.

Can adultery affect how long spousal maintenance lasts?
It can influence whether maintenance is awarded at all and in what amount, though Texas statutory caps on duration still apply regardless of fault.

Is adultery a crime in Texas?
No. Texas does not criminally prosecute adultery. It is relevant only in civil family law proceedings.

What if the adultery happened before we separated?
Timing matters. Adultery that occurred during the marriage and before separation is generally the most relevant to a Texas divorce court's analysis.

How soon should I consult an attorney if I suspect adultery?
As early as possible. Evidence can disappear, and decisions made early in the process, including how you handle marital assets and communications, can affect your case significantly.

John J. Pfister Jr., board-certified in family law by the Texas Board of Legal Specialization, represents clients in Frisco, Prosper, McKinney, and throughout North Texas in divorce cases involving fault, adultery, and complex property disputes. If you are facing a divorce where fault may be a factor, contact Pfister Family Law to discuss your situation.