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Adultery in Texas: From the Bedroom to the Courtroom

There is a myriad of reasons why marriages fall apart and end in divorce. Sometimes it is financial stressors that seep into every nook and cranny of the relationship. Sometimes it is a conflict with family and friends that corrodes the bonds of trust between spouses. Other times it is work, or illness, or a desire for children confronted with a lack thereof. And while these sources of strife and contention are often present to some degree in every struggling relationship, there is one reason that seems to be cited much more frequently—and boisterously—as the straw that broke the marriage’s back: the affair.

Some common questions from spouses who have unfaithful partners include: What happens in a divorce if my spouse is having an affair? How will the Court punish my spouse for their infidelity? What constitutes adultery in a divorce, and how do I prove that my spouse cheated on me? Let’s go through each of these questions and look at how these issues are handled under Texas law.

  • What happens in a divorce if my spouse is having an affair? Texas law provides two categories of grounds for divorce. The first is what we call the insupportability ground, also known as a “no-fault” divorce, which requires one spouse’s testimony to establish that (1) the marriage has become insupportable because of discord or conflict, (2) that discord or conflict destroys the legitimate ends of the marriage, and (3) there is no reasonable expectation of reconciliation. The second is what we call the fault-based ground, which includes in relevant part adultery, abandonment, and cruelty. To meet the requirements for a legal dissolution of a marriage relationship in Texas, one of these grounds must be pled and proven by at least one party to the divorce. While a party might be entitled to a divorce on grounds of adultery, they are not required to choose that as the ground for their divorce; in fact, even in cases involving infidelity, many still choose to elect the no-fault ground of insupportability. Divorce on a fault-based ground like adultery as compared to the no-fault ground of insupportability typically takes longer, costs more, and can be much more intrusive to one’s private life.
  • How will the Court punish my spouse for their infidelity? First, it is important to remember that no attorney, no Court, and no punishment has the ability to fully heal the deep, devastating wounds caused by infidelity. However, Texas law does provide a remedy during divorce for spouses that have suffered through the anguish of adultery. In every divorce, the Court is charged with dividing the estate of the parties in a manner the Court deems just and right. What constitutes a “just and right” division is based on a number of factors, which include in relevant part one party’s fault in the breakup of the marriage and the benefits that the party not at fault would have derived from the continuation of the marriage. These factors can be applied by the Court to provide some amount of remedy to the faithful spouse by awarding them with a disproportionately larger share of the marital estate in a divorce. Additionally, when one spouse spends money on a paramour during the marriage, this could potentially be considered as an improper wasting of marital assets. If proven, the Court may remedy such waste by taking the total amount of funds expended on a paramour and “adding” them to the total amount of the estate before ordering the division. This means that at least a portion of the adulterer’s share of the divided property would consist of “fictional” funds that do not actually exist, resulting in a larger share of cold, hard cash in the other spouse’s hands.
  • What constitutes adultery in a divorce, and how do I prove that my spouse cheated on me? In the context of a divorce proceeding, adultery is defined as “the voluntary sexual intercourse of a married person with one, not the spouse.” The act of sexual intercourse must occur after the parties are legally married, and even if the parties are living separately and have an active divorce suit pending, adultery can still occur up until the day the Court enters a final judgment in the case. While the definition of adultery seems straightforward and clean-cut, what it takes to prove that adultery has occurred is much messier and more nuanced. Courts have held that adultery can be shown by either direct or circumstantial evidence (Direct: Photographs of the spouse and paramour caught in the act / Circumstantial: Suggestive text messages between spouse and paramour coupled with receipts showing spouse paid for a room at a hotel the same night paramour paid for dinner and drinks for two at the restaurant of the same hotel). However, Courts have also emphasized that the proof must be “clear and positive” and that mere suggestion and innuendo are insufficient. Generally, a Court will analyze the specific facts on a case-by-case basis to determine if the evidence presented, whether direct or circumstantial, reaches the mark of being clear and positive. In a recent divorce case out of El Paso County, the Court found that Wife proved her claim that Husband committed adultery when she testified that Husband’s paramours had contacted her about these affairs and that she had seen text messages and pictures from his lovers, despite not admitting any of those pictures into evidence. The husband denied the adultery allegations and argued that the Wife’s testimony was all hearsay and amounted to nothing more than rumor and innuendo. The Court also found persuasive Wife’s text messages to Husband accusing him of affairs over the years because Husband never denied or rebutted the allegations by Wife but instead told her that he loved her and missed her and wanted to attend counseling. On appeal, the Court’s decision was affirmed based in part on the notion that it is well established under Texas law that a person’s silence in situations where denial or rebuttal would be expected can serve as an admission against the person who remained silent.

Navigating your way through the challenging legal complexities of a divorce can be difficult—even more so when that difficult journey is exacerbated by infidelity. If you or someone you care about is in this situation, contact the experienced attorneys at Hance Law Group by phone at 469-378-5467 or online at, and let us help you protect your priorities.