Is Adultery Illegal in Texas?

By River Braun, J.D.

Is Adultery Illegal in Texas?

By River Braun, J.D.

Adultery may be considered morally or religiously wrong, but it is not considered a crime in Texas. A spouse cannot be arrested and will not go to jail if he or she engages in extramarital affairs. However, cheating on your spouse is addressed in the state's civil laws. Therefore, infidelity can have an impact on your divorce in Texas.

Angry woman with crossed arms turning away from an ashamed man sitting on a couch behind her

Child Custody and Adultery in Texas

Texas child custody laws recognize that parents have an equal right to spend time with their children and participate in making important decisions related to their child's education, healthcare, religious upbringing, living arrangements, and daily activities. The law does not prohibit a judge from considering adultery when they make decisions related to custody and time-sharing.

For instance, if the person with whom your spouse had an affair is now living with your spouse before the marriage has ended, the judge may consider this fact when deciding custody. However, the overriding concern in all custody and visitation matters should be the best interests of the child.

Property Division and Adultery in Texas

Texas is a community property state for purposes of divorce, which means that property acquired during the marriage belongs to each spouse equally. In a community property state, marital property is also typically divided equally between the spouses. However, there are exceptions.

Judges consider the facts and circumstances of the case to determine what is “just and right" regarding property division. In some cases, “just and right" may result in a 50-50 division of property or it may result in a 40-60 split or any other split the judge determines is fair based on the facts of your case.

Adultery may impact property division in your divorce if there is clear and convincing evidence that your spouse committed adultery or if your spouse used marital assets to provide for the living expenses of or give lavish gifts to a paramour.

Spousal Support and Adultery in Texas

As with property division, a judge must consider the facts and circumstances of a case when awarding alimony, and Texas has very specific laws related to spousal maintenance and support. There must be grounds for awarding alimony or support. While a judge could consider adultery when awarding alimony, judges do not use marital fault, including adultery, to punish a spouse by awarding alimony or spousal support that is not warranted under Texas law.

Additionally, infidelity can result in anger and hurt feelings, which can negatively impact a couple's ability to resolve issues through mediation and negotiation. Therefore, adultery's emotional impact on a divorce can make the divorce process more difficult, costly, and time-consuming.

Proving Adultery Allegations in Texas

If you file your divorce based on your spouse's infidelity, you have the burden of proving your spouse engaged in an extramarital affair. Adultery can be proven by direct evidence of sexual intercourse with another individual or circumstantial evidence of the affair. However, the evidence must be “clear and convincing." Simply alleging your spouse had an affair because he or she began working late or no longer desired to have a sexual relationship with you is not sufficient to prove adultery.

If you desire to use adultery to influence the decisions in your divorce proceeding, you want as much proof as possible that your spouse was unfaithful during your marriage. The more proof you have of the infidelity, the better chance you have of convincing the judge to decide some issues based on your spouse cheating during the marriage.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.