Skip to content 
Someone reading messages on a spouse’s phone may think they are asking one question when they are really asking two: What Counts as Adultery in Texas? And if this is adultery, does it actually change anything in my divorce? Those questions sound almost identical when you have just discovered something painful. Legally, they are different questions, and separating them is the first step toward understanding what the messages—or photographs, dating profiles, unexplained charges, or other evidence—you found may actually mean.
The first question has a surprisingly precise answer, although you will not find it spelled out in Texas Family Code § 6.003. The statute makes adultery a ground for divorce but never defines the word. Texas appellate courts have filled that gap, repeatedly describing adultery as voluntary sexual intercourse by a married person with someone other than the spouse. That definition creates the harder modern question: where do sexting, emotional affairs, dating apps, kissing, photographs, and other conduct that may feel every bit like infidelity fit?
That is also where evidence becomes important. A message is not necessarily the conduct described by the courts, but it may be evidence that the conduct occurred. Texas courts allow adultery to be established through direct or circumstantial evidence, while requiring more than suggestion or innuendo. A few messages may tell one story. Those same messages combined with photographs, hotel charges, travel records, admissions, or inconsistent explanations may tell another. The question is not simply how upsetting the evidence looks. It is what the evidence can actually establish.
At The Law Office of Bryan Fagan, PLLC, we believe people make better decisions when complicated legal questions are made understandable. Founded by South Texas College of Law graduate Bryan Joseph Fagan, our firm helps Texas families separate what they fear, what they know, and what they can prove so they can make decisions with greater clarity and confidence. If you are trying to understand whether something crosses the legal line—or whether proving that it did is worth pursuing—this article will walk you through the definition Texas courts use, the conduct that falls near its boundaries, the evidence that can matter, and the practical questions to consider before deciding what comes next.
The Short Answer
The Family Code never defines adultery. Texas appellate courts repeatedly do, as voluntary sexual intercourse by a married person with someone other than the spouse. Sexting is not the sexual intercourse described by that definition — but we identified no Texas appellate decision squarely holding whether sexting alone can, or cannot, satisfy the adultery ground. What the cases do say is that adultery may be proved directly or circumstantially, and that the proof must be clear and positive rather than mere suggestion or innuendo. So the evidentiary question becomes what your messages, together with everything else, actually establish.
Key Takeaways
- The Family Code does not define adultery — but Texas courts do, describing it as voluntary sexual intercourse with someone other than the spouse.
- On that definition, messages are not themselves the conduct described. They can still matter as circumstantial evidence of conduct that is.
- Texas appellate cases say adultery may be proved directly or circumstantially, but the proof must be clear and positive rather than mere suggestion or innuendo.
- Separate the two questions. Whether it is called adultery and whether it changes anything are different, and the second is often more answerable.
- Conduct after you separated is not excluded. Texas courts have held adultery is not limited to what happened before the parties parted.
- Adultery is not a crime in Texas, so nothing on this page concerns criminal exposure.
Before any of the detail, the map. There are two questions inside the one people ask, they have different answers, and each has its own page.
Your Family’s Future Starts Here
Don’t navigate your legal journey alone. Schedule a consultation now and get the clarity and support you deserve.
The Code Does Not Define It — and That Changes the Question
Here is the provision that makes adultery a ground for divorce in Texas, in full:
Tex. Fam. Code § 6.003
Adultery. The court may grant a divorce in favor of one spouse if the other spouse has committed adultery.
To understand How Does Adultery Affect Divorce in Texas, it helps to start with an unusual feature of the law: Texas Family Code § 6.003 allows a court to grant a divorce when one spouse has committed adultery, but the statute itself does not define the term. It does not provide a checklist of qualifying conduct or explain whether particular behavior—such as dating, kissing, sexting, or an emotional relationship—crosses the legal line.
That omission matters when the facts are less obvious than someone admitting to a sexual relationship. Because § 6.003 does not supply its own definition, Texas courts have developed the meaning of adultery through case law. In practical terms, that means the question is not simply whether a spouse considers certain behavior “cheating,” but whether the evidence supports adultery as Texas law recognizes it. Our guide to the legal definition of infidelity in Texas takes a closer look at that distinction and the conduct that may—or may not—support an adultery allegation.
This is also why defining the conduct should come before debating what it might change in the divorce. Text messages, dating-app activity, photographs, hotel records, or suspicious behavior may be relevant evidence, but their significance depends on what they actually establish when considered together. For the broader statutory framework—including where § 6.003 fits among Texas divorce grounds—see our guide to adultery laws in Texas. Here, the narrower question comes first: does the conduct you are concerned about legally amount to adultery?
Commonly Stated, and Wrong
You will read confident definitions of adultery attributed to Texas law. The section is reproduced above in full and contains none. Where a page states a precise test and cites the Family Code for it, the citation does not support the test. That does not make the page’s conclusion wrong — it means the authority is somewhere other than where you were told, and you cannot check it from the statute.
A Silent Statute Is Not the Same as No Law
Understanding How Does Adultery Affect Divorce in Texas requires an important distinction: Texas Family Code § 6.003 recognizes adultery as a ground for divorce, but the statute itself does not define the word. That does not mean Texas law has no definition. It means courts, rather than the Legislature, have supplied the definition through decades of appellate decisions.
Texas courts describe adultery in a divorce proceeding as voluntary sexual intercourse by a married person with someone other than the spouse. That definition appears repeatedly in Texas appellate decisions, including In re S.A.A., Ayala v. Ayala, and In re Marriage of C.A.S. & D.P.S., with those decisions tracing the rule back through earlier Texas cases. Courts also recognize that adultery may be established through direct or circumstantial evidence, but mere suggestion or innuendo is not enough.
That distinction matters because spouses often use “cheating,” “infidelity,” and “adultery” to describe different behavior. Secret messages, dating apps, an emotional relationship, unexplained hotel charges, or suspicious social-media activity may be personally significant and may contribute to other evidence, but they are not automatically the same thing as establishing adultery under Texas case law. Our guide to whether having an affair is illegal in Texas explains another important boundary: adultery can have consequences in a divorce even though Texas does not treat the affair itself as a criminal offense.
The practical lesson is not that “anything counts” because § 6.003 is brief, nor that there must be a hidden statutory checklist somewhere else in the Family Code. The definition has developed through case law, and the evidence has to be evaluated against that law. Before deciding whether proving adultery is worth making part of your divorce strategy, the first question is more basic: do the facts you can actually prove meet the legal meaning of adultery in the first place?
What Texas courts have said
Adultery means the “voluntary sexual intercourse of a married person with one not the spouse.”
It is not limited to conduct before the parties separated. It may be shown by direct or circumstantial evidence — but there must be clear and positive proof, and mere suggestion and innuendo are insufficient.
Texas appellate courts have used this definition for decades. See, e.g., In re S.A.A. (Dallas 2009); Ayala (Houston [1st Dist.] 2011); Portillo (Fort Worth 2016); Fitzpatrick (Dallas 2023); Grigsby (Corpus Christi–Edinburg 2025). Full citations below.
Where Sexting Sits
Sexting by itself does not necessarily establish adultery under Texas divorce law. That distinction matters when asking How Does Adultery Affect Divorce in Texas because Texas Family Code § 6.003 recognizes adultery as a fault ground, while Texas case law supplies the meaning of adultery. Messages, photographs, and calls may become important evidence, but the communication itself and the conduct it may help prove are not automatically the same thing.
What is decided, and what is not
We identified no Texas appellate decision squarely holding that sexting alone satisfies the adultery ground — and none holding that it cannot. Anyone stating either answer as settled Texas law is going further than the decisions we found.
But messages are far from irrelevant. In Fitzpatrick v. Fitzpatrick, a Dallas appellate court upheld an adultery finding on a record containing extensive digital and documentary evidence — texts and photographs sent to women, requests for their locations and hourly rates, purchases and other records — along with inconsistent accounts, including an earlier admission concerning a sexual encounter. The husband later denied meeting the women in person. The case does not hold that sexting itself is adultery. It shows that messages can form part of the circumstantial evidence from which the underlying conduct is found.
Think about the difference between a suggestive text and a thread discussing a hotel reservation, a recent encounter, and plans to meet again. Both may be painful to read, but they do not necessarily prove the same facts. Courts can consider circumstantial evidence when determining whether adultery occurred, so texts may become more significant when combined with hotel records, photographs, travel records, admissions, witness testimony, or other evidence. Our guide to when cheating is considered adultery in a Texas divorce explains that legal distinction in greater detail.
Messages can also matter for a reason people sometimes overlook: they create a timeline. Dates and timestamps may help establish whether a relationship developed before or after separation, when particular meetings occurred, or whether the communications correspond with hotel charges, travel expenses, gifts, or unexplained withdrawals. In a more complex divorce, those connections may lead beyond proving adultery and into questions about community spending or other financial conduct.
That is also why preserving the complete conversation can be more useful than saving only the most damaging screenshots. Context, dates, surrounding messages, and related financial records may help explain what the evidence actually proves. The strategic question is not simply whether the messages look like cheating—it is what the messages establish, what other evidence supports them, and what proving the underlying conduct could actually change in the divorce.
Holding a phone full of messages and not sure what you are looking at? A short conversation can help identify which legal question the messages actually raise.
The Other Boundary Cases
How Does Adultery Affect Divorce in Texas? There is no single automatic consequence. Texas Family Code § 6.003 recognizes adultery as a fault ground for divorce, but situations such as sexting, emotional affairs, dating profiles, a single alleged encounter, or conduct after separation can raise different legal and evidentiary questions. The first step is determining whether the conduct supports an adultery claim; the next is deciding what proving it could actually change. For a broader explanation of the definition, defenses, and statutory framework, see our guide to adultery laws in Texas.
One distinction is particularly important: adultery is marital fault, while fraud on the community concerns improper depletion of community property. Imagine evidence establishes an affair, while bank and credit-card records also show $30,000 in community funds spent on hotels, vacations, gifts, rent, or another person’s expenses. Those facts may create two separate legal issues—the affair itself and whether community property was improperly depleted. Texas Family Code § 7.009 provides remedies for fraud on the community, including consideration of a reconstituted estate, so following the money may sometimes matter more financially than simply proving the relationship existed.
The same issue-specific analysis applies elsewhere. Adultery does not automatically determine child custody; under Texas Family Code § 153.002, the child’s best interest remains the primary consideration, making the underlying conduct more important when it actually affects a child’s safety, stability, supervision, or welfare. Conduct after separation should not automatically be disregarded either, because separation does not end the marriage. Readers interested in how Texas approaches these questions within the broader national landscape can also review our comparison of adultery laws in Texas and other states.
In straightforward situations, there may be little strategic value in making an affair the center of the divorce. In more complex cases—especially when financial records do not match, substantial assets or business interests are involved, community money may have funded the affair, or the conduct affects the children—additional discovery or financial investigation may be worthwhile. The question to keep returning to is simple: What will proving adultery actually change? Answering that question helps focus the divorce strategy on the issues most likely to affect your children, property, finances, and future.
| The situation | Against the definition | The next question |
|---|---|---|
| Sexting or messages | Not the sexual intercourse the definition describes. We identified no decision squarely holding that messages alone satisfy it, or that they cannot. Courts have upheld findings on records containing extensive message and spending evidence. | Are they circumstantial evidence of conduct that does — at the level of clear and positive proof? — how much circumstantial evidence is needed |
| An emotional relationship with no sexual contact | Not the conduct the definition names. In one Fort Worth appeal a party admitted an affair but denied it was sexual, and the court did not have to resolve it. | Is there anything beyond the relationship itself? |
| A dating profile or account | An account is not conduct, so it is not the definition either. | What does it lead to factually? Suggestion and innuendo are expressly not enough. |
| An alleged encounter | This is the conduct the definition names. The question moves from what it is to whether it can be shown. | Direct or circumstantial evidence is allowed — but clear and positive proof is required. — the evidence question |
| Conduct after you separated | Not excluded. Texas courts hold adultery is not limited to conduct before the parties separated. | Timing may still matter to other issues — see dating during divorce in Texas |
Why Two Lawyers Can Apply the Same Definition Differently
How Does Adultery Affect Divorce in Texas when two lawyers can review the same evidence and reach different conclusions? The definition of adultery may be established, but applying it to text messages, photographs, admissions, financial records, and other circumstantial evidence requires judgment. Two attorneys can agree on Texas adultery laws yet disagree about what the evidence proves—and whether proving the affair would actually change the outcome of an important issue in the divorce.
That distinction becomes especially important when the evidence points to more than marital fault. Messages may support an adultery allegation under Texas Family Code § 6.003, while hotel charges, gifts, vacations, unexplained transfers, or other affair-related spending may raise a separate question about fraud on the community under § 7.009. In straightforward situations, further investigation may add little value; in more complex divorces involving substantial assets, business interests, significant community spending, or issues affecting the children, deeper discovery or financial tracing may be justified. Our discussion of the truth about divorce and adultery in Texas provides additional context for evaluating those distinctions.
The better strategic question is not simply, “Can I prove adultery?” It is, “What will proving adultery actually change?” The answer depends on the strength of the evidence, the property and finances at stake, the cost of developing the issue, and whether another legal question may have greater consequences for your children, property, finances, or future. That is where experienced legal analysis can turn a painful set of facts into a clearer and more focused divorce strategy.
What to Do With the Messages
It is natural to want the first question settled first, on the assumption that the label unlocks the consequence. It does not work in that order, and time spent forcing agreement on a term is time not spent on the parts of the case that have rules attached to them.
What to do with the messages in the meantime. Do not delete them and do not confront anyone with them before you have taken advice. And do not go looking for more in places you are not sure you are entitled to access — how information was obtained can matter as much as what it shows, and that is a question to ask before you look rather than after. Preservation and lawful access are their own subject; start with how much circumstantial evidence is needed to prove adultery.
Read the Law Yourself
This page rests on a short piece of statute and you can confirm the central point in about a minute.
- Family Code section 6.003 — read it and note what is not there. It is quoted in full above.
- Chapter 6, Subchapter A — all seven grounds for divorce, and the defenses provision. No definitions section for adultery appears anywhere in it.
The definition itself is in the case law rather than the Code. The decisions that state it, in order:
- Bell v. Bell, 540 S.W.2d 432, 435 (Tex. Civ. App.—Houston [1st Dist.] 1976, no writ) — the earliest authority in the citation chain we identified; later courts cite it for the definition.
- Morrison v. Morrison, 713 S.W.2d 377, 380 (Tex. App.—Dallas 1986, writ ref’d n.r.e.) and In re S.A.A., 279 S.W.3d 853, 856 (Tex. App.—Dallas 2009, no pet.) — modern decisions repeating the definition and the evidentiary formulation.
- Ayala v. Ayala, 387 S.W.3d 721, 733 (Tex. App.—Houston [1st Dist.] 2011, no pet.) and Newberry v. Newberry, 351 S.W.3d 552, 556 (Tex. App.—El Paso 2011, no pet.).
- In re Marriage of C.A.S., 405 S.W.3d 373 (Tex. App.—Dallas 2013, no pet.); Portillo v. Portillo, No. 02-14-00124-CV (Tex. App.—Fort Worth Apr. 21, 2016, no pet.) (mem. op.); and Fitzpatrick v. Fitzpatrick, No. 05-22-00001-CV (Tex. App.—Dallas May 8, 2023, no pet.) (mem. op.) — the clearest modern example of an adultery finding upheld on largely digital evidence.
- In re Marriage of Grigsby, No. 13-24-00513-CV (Tex. App.—Corpus Christi–Edinburg Aug. 28, 2025) — the most recent, confirming the definition is still the one courts use.
What I Tell People Who Ask Whether Messages Count
The definition is well established. What your messages prove is not. Stop asking whether it counts and start asking what it establishes — that is the question an attorney can meaningfully evaluate.
Complex Divorce Strategy
Complex Divorce Strategy & High-Conflict Custody
Kimberly P. Washington
Senior Managing Attorney · Houston
Kimberly brings over a decade of family law experience and oversees complex divorce and custody cases from the Houston corporate office, while helping direct attorney strategy firm-wide. Deciding whether a disputed set of messages is worth developing as a fault issue, and whether doing so advances the wider strategy, is the kind of judgment this page ultimately leads to.
Complex divorce strategyHigh-conflict custodyCase oversightMilitary divorce
Bring what you have to a Legal Strategy Session so we can look at what the material actually establishes, whether it is worth pleading, and what it would take.
Kimberly works from our Houston corporate office at 3707 Cypress Creek Parkway, Suite 400 — 281-562-7344. We serve clients across Texas. More about the Houston office →
Conclusion:
How Does Adultery Affect Divorce in Texas? The answer depends less on the emotional weight of the affair and more on what the conduct actually changes legally. Adultery is marital fault under Texas Family Code § 6.003, but it does not automatically determine property division, spousal maintenance, or child custody. In straightforward situations, the evidence may be clear and there may be little reason to spend additional time and money developing the issue; understanding whether consent or forgiveness affects an adultery claim in Texas can also help clarify situations involving reconciliation or a spouse’s prior knowledge of the conduct.
In more complex divorces, what surrounds the affair may matter as much as the affair itself. If community money paid for hotels, vacations, gifts, rent, or another person’s expenses, the financial records may raise a separate fraud-on-the-community issue under Texas Family Code § 7.009. If substantial assets, business interests, disputed transactions, or children are involved, the strategic question becomes: What will proving adultery actually change? Answering that may require financial discovery, asset tracing, or a closer review of how the underlying conduct relates to property, finances, or the children’s best interests.
At The Law Office of Bryan Fagan, PLLC, a Legal Strategy Session is designed to help answer those questions before resources are committed to issues that may not move the case forward. The goal is not simply to prove that something painful happened; it is to identify what matters legally, what is worth pursuing, and what strategy best protects your children, property, finances, and future. That clarity can help you regain control of the decisions ahead and move forward with greater confidence.
About the Author
Founder & Managing Attorney
Bryan Fagan
Houston · Firm founded 2012
Bryan practices family law in Houston, with a focus on divorce, custody and the property questions that decide what each spouse walks away with. He writes the firm’s statewide educational material on marital property and dissolution, including this page.
Before law he built and ran a real estate and property business, which is where the financial side of these cases became familiar to him. Asset management, contract negotiation and reading a balance sheet are not skills most family lawyers arrive with, and they matter in almost any divorce that involves property. He is also the author of several family law guides written for clients rather than lawyers, including The Texas Divorce Handbook.
Juris Doctor, South Texas College of Law · Bachelor’s, University of Phoenix · Licensed by the State Bar of Texas
Questions People Ask
Texas appellate courts define adultery as voluntary sexual intercourse by a married person with someone other than the spouse, and sexting is not that conduct. We identified no Texas appellate decision squarely holding that sexting alone satisfies the adultery ground, and none holding that it cannot. Messages are still far from irrelevant — in Fitzpatrick v. Fitzpatrick a Dallas court upheld an adultery finding on a record containing extensive message, photograph and spending evidence together with inconsistent accounts, including an earlier admission concerning a sexual encounter. What is worth putting to an attorney is what your particular material could establish.
The Family Code does not define adultery, but Texas appellate courts repeatedly define it as voluntary sexual intercourse by a married person with someone other than the spouse. The harder questions arise when the evidence is indirect, or when the conduct — such as sexting or an emotional relationship — does not neatly match that definition
An emotional relationship without sexual intercourse does not match the conduct described by the judicial definition. The nearest Texas case leaves the point open: in a 2016 Fort Worth appeal a party admitted to an affair during the marriage but denied that it was sexual, and the court did not have to resolve whether that satisfied the definition.
The Code does provide a defense where a spouse knew and the marriage continued, and it attaches a condition to it. If you are searching for this as consent, the relevant statutory concept is condonation — they are not the same idea, which is part of why the search results are confusing. Because that provision belongs to the statutory framework rather than to the question of what counts, it is covered on our adultery laws in Texas page.
Section 6.003 itself does not create an exception based on separation, and the State Bar’s annotated Code cites In re Marriage of C.A.S. for the point that conduct after separation but before the divorce can be a basis for granting one. So this is a timing question rather than a definitional one, and it is taken up on our page about dating during divorce in Texas.
No. There is no Texas criminal offense of adultery and nobody is prosecuted for it, so nothing on this page concerns criminal exposure. Our page on whether adultery is a crime in Texas covers the history and how service members are treated differently.
