Defining Adultery in Texas Law
Adultery in Texas, under the state law, is defined as a voluntary sexual intercourse by a married person with someone who is not their legal spouse. In Texas, an individual can file for divorce under the fault ground of adultery if the other spouse engaged in voluntary sexual intercourse with someone outside of the marriage following the wedding. Adultery is classified as one of several "fault grounds" for divorce in the state of Texas.
The fault ground of adultery does not seem to be used often in the state, given the Texas Family Code . Individuals going through divorce in Texas typically cite incompatibility of the couple as the reason for the separation. Adultery as a reason for divorce is rare amongst the 85 fault-based divorces cited in the 2017 Texas Family Code: The Basics. Even so, being unfaithful may still impact how a divorce case is handled. If a spouse has been unfaithful, this could be a factor when the court decides on child custody, alimony and other forms of spousal support.
Does Adultery Affect My Divorce?
The introduction of an affair as a factor in a Texas divorce proceeding has several consequences for the final outcome of the division of property, the award of alimony, and the eventual determination of custody and support of any children. Divorce in Texas is permitted if the marriage is insupportable because of cruelty; adultery; conviction of one spouse of a felony; abandonment by the spouse; living apart for more than three years; and mental incapacity of one of the spouses.
If the court determines that one of the spouses committed adultery, the innocent spouse may recover one-half of the property that the court deems to be community income. In a division of community assets and debts, the court will not favor either party to the suit due to infidelity of either party. However, the conduct of the parties during the marriage (but not after separation) may be considered when making a disproportionate division. The fact that one spouse was unfaithful does not, of itself, affect the division of the community estate (unless resulting in a fraudulent transfer of community property out of the state or a waste of community assets). The applicable case law seems to indicate that infidelity will normally not result in an unequal division of property.
With regard to alimony, adultery is not specifically addressed in either the Texas Family Code or Texas legal precedent as grounds for denying spousal maintenance. However, many of the statutory provisions indicate that prior conduct is to be either ignored or minimally considered in making determinations of spousal maintenance awards.
When considering child support, the court cannot consider fault in determining conservatorship, the appointment of the managing conservator, or possession of or access to a child. Though there is some case law which indicates that the court may consider an extramarital affair if it resulted in the birth of a child or had a direct effect on the parenting of the child, this is not supported by the Family Code.
How To Prove Adultery In Court
In Texas, the burden of proof falls on the spouse accusing the other of committing adultery. The legal standard is a difficult one to meet. In most instances, the spouse must show that the other went beyond the general socializing of friends and co-workers into an intimate relationship. In the past, the Texas courts have disregarded "friendship" evidence. For example, the Houston Court of Appeals concluded that simply because the wife allowed her friend to spend the night at her home on several occasions was insufficient to prove adultery. The court also ruled that just because the friend was jealous of the wife’s male friends and took offense at his story telling, was not enough to prove an affair. Likewise, the Texas Supreme Court ruled that extra-marital affairs by both husband and wife with the same woman was insufficient to establish adultery. This is because the relationship with the wife was an "open" one and the couple attended the same gathering. On the contrary, when the affairs involved separate relationships with their neighbor, there was sufficient evidence to prove adultery. Other ways to prove adultery is through circumstantial evidence or testimony. Circumstantial evidence may include paramours texts or emails, a husband or wife’s sudden and unexplained disappearance for some unknown reason, or more blatantly, incriminating photos or videos. A spouse who suspects something and hires a private investigator not only has direct evidence, but this type of evidence along with circumstantial evidence may be enough to establish infidelity. Nevertheless, hiring a private investigator may be an unnecessary expense if you are already separated. Further, as a matter of strategic advice, you should consider hiring the investigator at the outset of the divorce and not after you learn your spouse has filed for divorce. The latter scenario may be used to show that you hired an investigator only because you knew your spouse had committed adultery or that you were stalking him or her.
Adultery and Fault Divorce in Texas
Pursuant to Texas Family Code, adultery is one of seven grounds for a fault based divorce. As opposed to a no-fault based divorce where a spouse is granted a Divorce on the basis of a "living apart" or a "conflict of personalities that prevents the reunion of the spouses" that have lasted for at least 60 days before filing a petition, in a fault based divorce one party can ask the court to assign "fault" to the other. In the case of adultery, if proved, a Judge can cite the conduct as a cause of the divorce and may enable the offended spouse to request a larger share of the community estate as a result of their spouse’s bad behavior. Whenever a fault based divorce is pursued, there is only a limited opportunity for the attorneys to present evidence to prove "fault" through a procedure called a special appearance (which is different from a "traditional hearing"). In addition to adultery there are six other grounds that may be asserted; cruelty, abandonment, living apart, confinement in mental hospital, felony conviction, and evading service of process . A divorce based on these other six grounds may not result in more property or liabilities being allocated to the "faulty" party, but may provide for spousal support awards that could benefit the party requesting the same. If you are seeking a divorce from you spouse on the grounds of adultery the fact that adultery occurred will not make having the final divorce any easier or faster. In other words adultery may be used as one of many factors requested by the Court to determine what is in the best interest of the minor children of the parties, how the community estate is divided, or whether spousal support is granted. Adultery does not automatically entitle either party to any certain portion of the community estate or awards of child support or spousal support. A doctor or nurse who provides a medical bill that is not paid for years after the services are rendered may be entitled to additional awards to compensate them for the non-payment. A spouse, who has cheated on the other, may or may not be compensated for being cheated on. Whether the offending spouse is awarded more or less from the community estate or being granted or denied more or less with spousal support is solely considered and determined by the judge hearing the case.
The Consequences of Adultery Outside of Divorce
In addition to the consequences of committing adultery in the divorce context, such as losing part of your community estate to a judicially determined "innocent spouse," there are additional legal consequences for those who are found to have violated the sanctity of their marriage vows. For example, United States v. Case is one of the few cases that addresses defamation for speaking about an affair to third parties, and it holds that such derogatory comments are slanderous per se. The Case court stated that "Plaintiffs spoke defamatory statements about the defendant to persons with whom plaintiffs worked, and to persons who are close relatives to the defendant. These statements include that the defendant was ‘having sex’ with another woman and that the defendant has ‘been screwing [plaintiff] for ten years.’"
Texas courts also recognize claims by bystanders if the adultery rises to a level where the third parties are "co-facilitators" to the adultery. A claim for conspiracy claims for the alleged "jilted lover" was recognized in Draughon v. Watson.
Misconceptions and Truths
One of the most common myths about adultery law in Texas is that adultery is illegal. While it pales in comparison to the penalties for bigamy, the offense of adultery is indeed a Class C misdemeanor in Texas. Convictions will carry a fine up to $500. However, this only occurs in cases where an individual has gone through the established process to complain about the offense and the government has actually filed charges. As such, it is incredibly rare for someone to actually be charged with adultery, let alone to actually be convicted. This does not make the offense of adultery acceptable, of course, at least not according to the law. Still, many people do commit adultery and are never charged with the offense. If you commit adultery, it is extremely unlikely to change your criminal record in Texas unless you happen to be charged and convicted, so don’t worry about getting a "bad mark" on your permanent record by having committed adultery . Additionally, many people believe that, if someone has committed adultery, this gives their estranged spouse a "free pass" to cheat. This is not true. While the legal system does not punish all those guilty of adultery, it is a violation of the law. In short, adultery is not a "get out of jail free card." Some people also believe that adultery in itself will prevent someone from getting spousal support during their divorce. The Truth in Lending Act clearly states that adultery must be a specific reason for divorce when requesting spousal support. For this reason, adultery cannot be the sole basis for a divorce filing. Specific reasons must be given for the request of spousal support, and those reasons do not include adultery. Of course, cheating in the relationship has much to do with the current state of the divorce, causing extreme emotional damage and personal traumas. This damage may be enough to warrant spousal support.