Adultery can be a fault ground for divorce in Texas and may affect property division and spousal maintenance. It does not automatically entitle either spouse to a particular outcome. The evidence, financial circumstances and other facts of the marriage matter.
Role of Adultery in Texas Divorces
Texas Family Code Section 6.003 allows a court to grant a divorce based on adultery. Texas also permits no-fault divorce based on insupportability, so proving adultery is not required to end a marriage.
Texas courts describe adultery as voluntary sexual intercourse between a married person and someone other than their spouse. Suspicion of an affair or an emotional relationship alone does not establish that legal ground.
What Evidence Can Support an Adultery Claim?
Adultery may be established through direct or circumstantial evidence. Direct eyewitness proof is not always necessary, but the evidence must support a finding that adultery occurred. Mere suspicion or insinuation is insufficient.
Messages, photographs, testimony and financial records may help establish relevant facts. Their admissibility and significance depend on the circumstances. An attorney can assess the evidence and explain how to preserve and obtain information lawfully.
See Portillo v. Portillo for the distinction between circumstantial proof and unsupported allegations.
Spousal Maintenance and Alimony in Texas
Court-ordered spousal maintenance is not automatic because one spouse earns less or was cheated on. Under Section 8.051, the requesting spouse must lack sufficient property to meet minimum reasonable needs and satisfy an additional statutory condition.
Those conditions concern a qualifying family-violence conviction or deferred adjudication; an incapacitating disability; a marriage of at least 10 years combined with insufficient earning ability; or care of a child of the marriage whose disability prevents the spouse from earning enough. The child may be any age. The 10-year pathway also involves a statutory diligence requirement.
How Adultery Affects Spousal Maintenance
Once eligibility is established, Section 8.052 includes adultery by either spouse among the factors considered in determining maintenance. Adultery alone neither establishes eligibility nor automatically disqualifies a spouse. Agreed contractual support is distinct from court-ordered maintenance.
How Adultery May Affect Property Division and Custody
Texas requires a just and right division of the marital estate, not necessarily an equal split. Fault may be considered, but adultery does not guarantee a larger share. Spending community funds on an affair may raise a fraud-on-the-community issue, depending on the evidence. See Sections 7.001 and 7.009.
For custody, the child’s best interest remains the primary consideration under Section 153.002. Adultery alone does not automatically eliminate parenting rights. Conduct affecting the child’s safety or welfare may be relevant. Our Austin child custody attorneys can explain how those issues apply.
Common Questions
Can adultery occur after spouses separate?
Yes. Separation does not end the marriage, and Texas courts recognize that adultery can occur after spouses begin living apart.
Do I have to prove adultery to get divorced?
No. Texas permits no-fault divorce. Whether to pursue a fault ground should be evaluated in light of the evidence and your goals.
What to Bring When Discussing an Affair with a Divorce Attorney
- A timeline of the marriage, separation and relevant events.
- Financial statements or transaction records you lawfully possess that may show disputed spending.
- Complete messages or other records you already have lawful access to.
- Your priorities involving property, finances and parenting.
Explain what you know firsthand and what you suspect. Do not guess passwords, enter private accounts without authorization or publish allegations online. An attorney can discuss lawful evidence gathering and whether pursuing a fault ground advances your divorce goals.
Discuss Your Divorce Options
The Eggleston Law Firm represents Austin and Central Texas clients in divorce matters. Learn how our Austin divorce attorneys can help evaluate your options, or read Janice Eggleston’s biography.
Schedule a consultation to discuss your circumstances.
This article provides general information, not individualized legal advice. Reading it does not create an attorney-client relationship.
