It is fairly well known that adultery is grounds for
divorce in Texas and can impact how a judge rules in a
Texas divorce proceeding. The State's laws take adultery into account when it comes to the
dissolution of the marriage and can call for punitive damages for unfaithful
behavior. What is not as well known, however, is whether or not adultery
is actually a crime in this State.
Texas Family Code and Adultery
Though adultery does violate certain civil laws that are found in the Texas
Family Code, adultery is not a crime in Texas. If you're wondering
how the cheating spouse is held accountable for their actions, there are
a number of instances where their feet are held to the fire. Perhaps the
most common is in relation to the division of the assets and property
that were accumulated during the course of the marriage.
What is Adultery?
Under Texas Family Code section 6.003 adultery is a legal term in Texas
that means the voluntary sexual intercourse of a married person with one
not the spouse.
Adultery and the Less than 50/50 Split in a Divorce
Texas is a "community property" State where the court will normally
divide this marital property 50/50. Where adultery is a factor, a court
can award a disproportionate (more than 50% to one spouse) share of the
property to the spouse that was cheated on. This occurs with frequency
when the unfaithful spouse utilized community funds to facilitate the
cheating or when that affair was the main cause of the breakup of the marriage.
Child Custody and Adultery
Adultery in the Texas Family Code DOES NOT:
make a spouse eligible for
alimony or spousal maintenance
An adultery finding alone will not change the outcome of
child custody or conservatorship provisions either.
However, a Judge has a lot of discretion in deciding what is in the “best
interest of the child.” Although the adultery itself might not make
a difference your new significant other is may make a difference. Our
office has on more than one occasion observed a parent who would normally
win child custody lose because of who they were dating. This has happened
when they decided to date:
- A sex offender
- Someone with a violent past
- Problems with Child Protective Services
- Problems either using or distributing drugs
The specific facts in a
divorce case are obviously important to consider. However, what if your new significant
other does not have such a torrid past? In this case, then the adultery
may not hurt the adulterous partners case. However, if custody could go
either way then the adultery might be enough sway a judge to punish the
adulterous partner by awarding the faithful spouse
more time, access and rights with the children.
How do Other States treat Adultery?
21 States still have laws that make Adultery a crime. In most states adultery is defined as the sexual intercourse between a
person who is married with a person other than their spouse. In most states
where adultery is still a crime it is a misdemeanor. States where adultery
is still a crime include:
However, some states have adultery listed as a felony including:
- Oklahoma and
Under the Alabama Criminal Code adultery has been retained as Class B misdemeanor
criminal offense. Under Alabama Code § 13A-13-2, the offense of adultery
is committed when a person engages in sexual intercourse with another
person who is not his spouse and lives in cohabitation without other person
when he or that other person is married.
If prosecuted under this law could be punished by up to six months in jail
and fines up to $3,000.In Alabama, there is a one-year statute of limitations
for prosecution of adultery and like many other states is almost never
Adultery is considered a class 3 misdemeanor in Arizona under Arizona Revised
Statutes, ARS 13-1408. In Arizona, a Class 3 misdemeanors are the least
severe class and the maximum penalty is up to 30 days in jail, up to $500
in fines, and up to 1 year of probation.
However, it appears that currently this law is not being enforced. This
law got a little attention back in 2012 when a husband Dave Banks tried
to get the police to enforce it. According to him his wife had cheated
on him 7-8 times. Eventually after much effort he did get the police to
call his wife.
The Denver post reported on March 22, 2013 that Colorado legislature repealed
its anti-adultery law. Also repealed was another law that was rarely used
contributing to “sexual immorality” by providing a place,
such as a hotel room, for unmarried people to have sex.
Per Florida statute 798.01, adultery is a second-degree misdemeanor to
be Living in Open Adultery:
“Living in open adultery.—Whoever lives in an open state of
adultery shall be guilty of a misdemeanor of the second degree, punishable
as provided in s. 775.082 or s. 775.083. Where either of the parties living
in an open state of adultery is married, both parties so living shall
be deemed to be guilty of the offense provided for in this section.”
If prosecuted this could result in up to 60 days in jail and a fine of
up to $500.
In Georgia adultery is crime according to title 16, chapter 9, section
9 of the Georgia code of criminal conduct, "A married person commits
the offense of adultery when he voluntarily has sexual intercourse with
a person other than his spouse.
Under Georgia Law adultery is misdemeanor punishable by up to a year in
jail and $1,000 fine.
Adultery, has been considered a felony in Idaho since 1972. Like many other
states, Idaho rarely enforces this law anymore. However, it did gets some
attention back 2016 when there were ablations that lawmakers had been
caught in an extramarital affair.
If adultery is prosecuted in Idaho a person could spend up to three years
in prison and be fined up to $1,000 under Idaho Code Section 18-6601.
Under the Illinois Criminal Code section 11-35 adultery is a class A misdemeanor
“A person commits adultery when he or she has sexual intercourse
with another not his or her spouse, if the behavior is open and notorious,
and (1) The person is married and knows the other person involved in such
intercourse is not his spouse; or (2) The person is not married and knows
that the other person involved in such intercourse is married.
If prosecuted this could result in up to a year in jail and fine of $2,500.
Kansas criminal statues define adultery as engaging in sexual intercourse
or sodomy with an individual not married to the offender if the offender
or the other party is married. Criminal adultery is classified as Class
C misdemeanor in Kansas.
Class C misdemeanors in Kansas are the least serious type of offense and
are punishable by up to one month in jail and a fine of up to $500.
Maryland prohibits adultery and makes it a misdemeanor with a penalty of $10.00.
In Massachusetts adultery is a Felony under Chapter 272, Section 14 provides that:
A married person who has sexual intercourse with a person not his spouse
or an unmarried person who has sexual intercourse with a married person.
If prosecuted and found guilty of adultery in Massachusetts this could
result in a punishment of imprisonment in the state prison for not more
than three years or in jail for not more than two years or by a fine of
not more than five hundred dollars.
The Massachusetts Supreme Judicial Court has noted that the statute has
"fallen into a very comprehensive desuetude,"6 it cannot be
dismissed as a mere anachronism. Apparently, the last prosecution under
this statutes was over 30 years ago in Commonwealth v. Stowell, 389 Mass.
171, 176 (1983).
Section 750.30 of the Michigan Compiled laws defines adultery as “the
sexual intercourse of 2 persons, either of whom is married to a third
person.” In Michigan adultery is a felony-level crime, but it can
only be prosecuted if the spouse who is being victimized by the adultery
files a criminal complaint within a year of the offense.
In Michigan if prosecuted it is punishable by a maximum sentence of four
years in prison and a $5,000 fine.
Minnesota Statute 609.36 defines adultery as “When a married woman
has sexual intercourse with a man other than her husband, whether married
or not, both are guilty of adultery.
Conviction can result in imprisonment for not more than one year or to
payment of a fine of not more than $3,000, or both.
No prosecution shall be commenced under this statute except on complaint
of the husband or the wife…after one year from the commission of
Under the Mississippi Code Section 97-29-1. Adultery and fornication; unlawful
cohabitation states that is against the law “If any man and woman
shall unlawfully cohabit, whether in adultery or fornication.
If prosecuted they can be fined in any sum not more than five hundred dollars
each, and imprisoned in the county jail not more than six months.
Effective January 1, 2015, adultery is no longer be a crime in New Hampshire.
Prior to that adultery was a class B misdemeanor.
Adultery, is still a class B misdemeanor in New York under section 255.17
of the state penal law, punishable by a fine of $500 or 90 days in jail.
From my research it appears the law is rarely enforced and only about
a dozen people have been charged since the 1970’s.
Of some interest to the readers of this blog is how the State of North
Carolina handles situations such as these. North Carolina allows for a
claim called alienation of affections. This situation occurs when people
are married that is genuine in terms of affection, the affection was destroyed
and the reason for it had to due mainly with bad conduct with a person
outside the marriage. The faithful spouse, in other words, can file suit
against the "other" man or woman. Most states have abandoned
these type of legal scenarios but North Carolina operates as an exception.
If you have questions about divorce, adultery or any other family law matter
please contact the attorneys with the Law Office of Bryan Fagan. Our team
of attorneys is ready to assist you with a listening ear and helpful demeanor
during whatever situation you are currently facing in your life.
In North Dakota a married person is guilty of adultery if he or she engages
in a sexual act with another person who is not his or her spouse.
No prosecution shall be instituted under this section except on the complaint
of the spouse of the alleged offender, and the prosecution shall not be
commenced later than one year from commission of the offense.
Adultery is a class A misdemeanor which carries a penalty of up to 1 year
in jail and a fine of $2,000.
Per Oklahoma Statute section 21 871, any person guilty of the crime of
adultery shall be guilty of a felony.
Punished can include imprisonment in the state penitentiary not exceeding
five years and a fine of $500.
Rhode Island Chapter 11-6-2 defines adultery as “illicit sexual intercourse
between any two (2) persons, where either of them is married, shall be
deemed adultery in each.”
The penalty for adultery is a fine not to exceed $500.
In 2016 South Carolina voted and approved repealing laws that criminalized
premarital sex, adultery, and seducing a woman with the promise of marriage.
Under Virginia Code Section 18.2-365, adultery is defined as crime in which
a “married person voluntarily engages in sexual intercourse with
a person not his or her spouse.”
Virginia classifies adultery as a Class 4 misdemeanor – the lowest-level
criminal offense, with a maximum punishment of a $250 fine. In 2016 attempts
were made to repeal this law but met with failure.
In Utah, adultery is defined as a married person having sexual intercourse
voluntarily with someone other than that person's spouse. Adultery
is taken very seriously under Utah law and is a misdemeanor criminal offense.
Adultery is a Class B misdemeanor punishable by up to six months in jail
and a fine of up to $1,000.
In Wisconsin adultery is defined as either “(1) A married person
who has sexual intercourse with a person not the married person's
spouse; or (2) A person who has sexual intercourse with a person
who is married to another.
Adultery is a Class I Felony punishable by up to two years in the state
penitentiary and a fine of $10,000.
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Law Office of Bryan Fagan | Houston, Texas Divorce Lawyers
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Houston, TX Divorce Lawyers right away to protect your rights.
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