The Fundamentals of Texas Adultery Laws: Implications and Ramifications

Texas Adultery Laws: A Primer

Adultery, in layman’s terms, is infidelity by a spouse that constitutes grounds for divorce in many states. In Texas, adultery is defined as "willful and intentional" sexual intercourse with someone other than the spouse. While adultery as a standalone action alone cannot be used to file for divorce, it can be cited as a fault ground under Texas divorce law, where a spouse’s marital misconduct within the marriage contributes to the court’s final divorce decision. Adultery will increase the fault grounds of the divorce.
Adultery has been a recognized fault ground for divorce in Texas since 1845 , when the first Texas divorce laws were enacted. The statute language (Sec. 3) in those original laws was:
Divorce may be decreed from the bond of marriage when either husband or wife shall have been guilty of adultery since the marriage.
Over time, the language was tightened up and more narrowly defined, creating new statutory definitions that still remain on the books today:
Sec. 3. CONSENT OF PARTIES UNNECESSARY. A suit for divorce may be maintained by either husband or wife in this State for any of the causes mentioned in this Title, and it shall not be necessary that any suit for divorce shall be prosecuted and maintained jointly by such parties.
Sec. 4. CAUSES FOR DIVORCE.
A divorce may be granted for any one of the following causes: Adultery.
There is currently no administrative statue in Texas with regards to adultery.

The Impact of Adultery on Divorce in Texas

In Texas, adultery can be considered a "fault ground" for divorce. That means that if the adultery is proven, the court may consider it in the division of property and debt and in the award of an amount of spousal support (formerly known as alimony). However, as stated elsewhere in this blog, the Texas legislature has made a "no-fault" divorce system as the default divorce option for the state. This means that the appropriate ground for a divorce is "insupportabilty". There are four options available to divorce on fault grounds in Texas: adultery, cruelty, felony conviction, and abandonment.
The most common fault ground that people believe will help them obtain favorable terms of a divorce is adultery. However, that is not always the case, especially in this day and age where divorce cases are more of a business transaction than they were a couple decades ago. Adultery may not matter very much to some judges, while others will take significant offense to it and impose far more substantial penalties against the person they feel has committed adultery.
While adultery may be a felony in some states, it is no longer a felony in Texas. It is a Class B misdemeanor, which is punishable by no more than 180 days in jail and/or a fine of $2000. Therefore, adultery is a "crime" but the State has chosen to use its limited criminal resources to prosecute more significant criminal acts.
Adultery does not have to be proven with more than a preponderance of the evidence (more likely than not) to successfully argue to the court that adultery should be considered in the division of property. The main problem with adultery is that it can create and exacerbate the emotional issues involved in your divorce. It is very difficult to maintain a reasonable relationship with your spouse after being betrayed in such a personal way, and that betrayal can seem even more personal when there are children involved as well.
Furthermore, it can create issues for you to face in the emotions of child custody matters. Whether or not you have been the one cheated on, you may have a strong desire to protect your children from the actions of your soon-to-be-ex-spouse. You may find yourself struggling with the notion that your children will be hurt by the activities of their other parent post-divorce. This can lead to increased animosity towards the other parent. A demonstrated desire to protect children can be a strong asset in court, but can also be seen as controlling and manipulative, particularly when there is an underlying desire to get revenge against your ex-spouse. It is important to work with your attorney to clearly delineate between your desire to do what is best for your children and your anger toward your ex-spouse.
Ultimately, whether or not cheating matters in your divorce proceedings will depend on the judge assigned to your case. If your divorce involves a fault ground, it is important that you discuss your options and how you should proceed with an attorney experienced in divorces involving adultery.

Property Division and Adultery

In cases of adultery, the Court will generally consider whether the spouse’s actions had diminished the estate to be divided or whether the spouse’s actions increased the estate (for example, with an extramarital affair committed by a successful, wealthy spouse). If the alleged infidelity can be tied directly to excess spending, and thus a diminished estate, the Court is more likely to consider the actions of both spouses in arriving at an equitable division of the property. However, an equitable division of property might not mean an equal division of property.
If the claimant spouse is able to show that the adultery was reckless or intentional, the Court may award a greater proportion of the estate to the claimant spouse. The Courts analyze and enforce these adultery laws differently according to the facts of each case.
The Courts will also take into consideration what is best for the children. That is, if the spouse found guilty of adultery is the primary caretaker of the child or children, the Court will consider the child’s welfare when dividing the community property.

Child Custody and Adultery

Adultery and child custody do not have to go hand in hand. For example, you may think that adultery results in the spouse who cheated losing custody of the children. This is not the case.
When the court is determining the rights of the spouses in regards to their children (also known as conservatorship and possession), it will look for the option that is in the best interest of the child. If you are the spouse who committed adultery, this does not necessarily mean that your spouse will end up with the children. First, examine how often you and or your spouse were actually caring for the children. Who was responsible for more of their daily care?
From a practical standpoint, ask yourself to whom the children relate better? When they are away from you, do they seem happier? Does your interaction with them seem strained or uncomfortable? Which parent seems to be most involved in their education and extracurricular activities?
The key to winning a child custody battle is to prove that you are the right choice to be a conservator. Basically , this means that you are asking for the authority to make decisions on behalf of the children. If the children are pre-school age, courts usually favor appointing parents with a larger share of the daily care to more of the decision-making authority. However, this does not mean that a parent will lose custody solely because of an affair.
If the current situation involves a dangerous life for the children, the court may temporarily separate them from the unfit parent until a final decision is made. If there is any evidence or indication that a loving and supportive home will not be available for the children, the court will not award custody to the offending parent.
It is important to remember that adultery spoils divorce process by making spouses react to each other from a defensive position. One spouse fears the other spouse’s actions while the other spouse is trying to gain an advantage. This leads to more damage and often hurts the children in the long run.

Adultery and Spousal Support

An adultery finding can be fatal to a request for an award of alimony or "spousal maintenance." The statute regarding the latter, Texas Family Code Section 8.051 is set out below:
§ 8.051. Ability of Spouse To Support Self in Addition to Duration of Marriage.
(a) The court may not order a spouse to pay postmarital support unless the court finds that the spouse seeking postmarital support:

(1) will lack sufficient property, including property awarded to the spouse under Subchapter A, to provide for the spouse’s minimum reasonable needs; and
(2) is unable to support himself or herself through appropriate employment because of:

(A) disability;
(B) a chronic illness or mental impairment;
(C) absence from the job market that resulted in a lack of earning capacity; or
(D) the caretaker responsibilities of the spouse seeking postmarital support.
(b) The court may order postmarital support in an amount that would allow the spouse seeking postmarital support to provide for the spouse’s minimum reasonable needs if the court finds that the spouse from whom support is requested:

(1) would be eligible for public assistance benefits; and
(2) would qualify for food stamps under Chapter 33, Human Resources Code.

(1) the nature of the divorce suit, including the parties’:

(A) length of marriage;
(B) ages;
(C) physical and emotional conditions;
(D) financial resources, including marital or separate property; and
(E) employability;

(2) how and when the property awarded to the spouses was acquired;
(3) the contribution by one spouse to the education, training, or increased earning power of the other spouse;
(4) the contribution of a spouse as a homemaker;
(5) the marital misconduct of the spouse seeking support, including adultery and cruel treatment toward the other spouse or a child;
(6) the physical and emotional care and support of the child of the marriage;
(7) the educational needs of a child of the marriage;
(8) the ability of the obligee to provide for that spouse’s minimum reasonable needs by employing the obligee’s earning ability effectively and efficiently; and
(9) the program of education and training for a spouse requesting support that will enable the spouse to earn sufficient income to provide for that spouse’s minimum reasonable needs.

(d) In determining whether postmarital support is necessary, the court may consider whether the spouse seeking postmarital support is eligible for assistance under:

(1) the Aid for Dependent Children program (42 U.S.C. Section 601 et seq.); or
(2) the Child Support Enforcement program (Part D, Title IV, Social Security Act [42 U.S.C. Section 651 et seq.]).

Legal and Emotional Ramifications

Adultery, while mainly resulting in the dissolution of a marriage, can have certain legal consequences on families other than divorce itself. Until 1969, state statutes empowered spouses to bring civil actions against personalities in adulterous relationships. Texas law still allows for civil actions against third parties for enticing one spouse to have an extra-marital affair with the other. The Texas statute is called Alienation of Affections, and the affected spouse must prove both that his or her spouse engaged in an adulterous relationship with the stranger (the third party) and that the third party conspired to alienate the couple and destroy the marriage . Though the law remains on the books, no successful claims have been made in Texas courts since 1975.
Since people who are affected by infidelity often experience severe emotional consequences, it is critical that those who have experienced marital infidelity receive emotional support. Support may come from friends, church groups, or marriage therapy. In addition to emotional support, the couple may wish to consider marriage counseling or therapy. Though a counselor cannot force a couple to stay together, he or she can help heal the trust that has been broken and create a more stable emotional environment for children.