Is Adultery Illegal in Texas?

By Beverly Bird

Adultery isn’t a crime in Texas; a spouse won’t go to jail, earn a criminal record or pay a fine if she strays. However, the state’s laws do address infidelity, so an adulterous spouse won’t always get off scot-free either. The state’s legal code does allow for punitive damages, or punishment, for adulterous behavior. Although adultery is not a criminal offense, it’s still in violation of certain Texas civil laws.

Impact on Property Distribution

Adultery is a ground for divorce in Texas and it can affect aspects of a divorce judgment. Family court judges may consider adultery when distributing property between divorcing spouses, although they’re not obligated to do so. Texas is a community property state. Judges normally divide marital property neatly down the middle, with 50 percent going to each spouse. However, when adultery is a factor, a judge can award more than 50 percent of community property to the wronged spouse. This is most likely to occur when there’s clear evidence that one spouse’s adulterous affair was solely responsible for ending an otherwise good marriage. It might also occur when the straying spouse used marital money and assets to shower gifts on her paramour. In this case, she has dissipated marital assets and a judge might hold her responsible for returning at least half of that money to the injured spouse.

Impact on Child Custody

Adultery might also affect a judge’s child custody decisions in some cases. An adulterous affair wouldn’t normally affect custody in and of itself in Texas, but if the straying spouse caused her children discomfort, embarrassment or pain by conducting her affair in their presence, this might affect a Texas judge’s ruling. This is especially true in custody battles in which both spouses are otherwise good parents.

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Impact on Alimony

Texas is not alimony-friendly, so it’s unlikely that a judge would base an alimony decision on the fact that adultery occurred during the marriage. Texas judges award alimony only in isolated circumstances when the spouse seeking it is clearly incapable of meeting her own financial needs. Even then, the Texas family code limits alimony to no more than three years and not more than $2,500 a month or 20 percent of the paying spouse’s monthly income before taxes.

Tort Claims

Texas law allows a harmed spouse to make a tort claim in her divorce petition. This means that in addition to asking for a divorce, for his share of marital property and possibly custody of the children, the injured spouse can also ask the court to punish the straying spouse for the pain she caused him. Punishment takes the form of ordering her to make financial restitution for it. However, the spouse making the tort claim has the burden of proof to convince the court that his spouse’s actions were more extreme than just having an affair. For example, the adulterous spouse might have brought her paramour into the family home knowing that her partner would discover them together. The emotional distress must be severe and intentional.

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