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When is, Cheating Considered Adultery in a Texas Divorce?

What is adultery in Texas?

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.

Burden of Proof

“Adultery can be stablished by either:

  1. Direct evidence or
  2. Circumstantial evidence Adultery can be shown by direct or circumstantial evidence.” In re Marriage of C.A.S. & D.P.S., 405 S.W.3d 373, 383 (Tex. App. 2013)

However, the burden of proof for proving adultery is clear and convincing. Mere suggestion or innuendo is not enough to prove adultery. Ayala, 387 S.W.3d at 733.

Clear and convincing evidence is a higher standard than “preponderance of the evidence,” which is generally used civil disputes.

Will it be held against me in the divorce if I get another woman pregnant?

I have been asked by potential clients on whether it would be held against them in the divorce if they got another woman pregnant?

I have also had the flip side of the question asked on whether being pregnant by another man would be held against them in the divorce.

As discussed above adultery can be established by either direct or circumstantial evidence. Pregnancy would be pretty good direct evidence of adultery. Below we will discuss how once adultery is proven how it can be used by the party not at fault to ask for a disproportionate share of the community estate.

It may be cheating but it is not Adultery

In Texas adultery requires sexual intercourse. Certain sexual encounters that are not specifically intercourse are not legally considered adultery.

In other words, if your spouse is exchanging sexually charged emails, photos, sexting or texts with another this may be cheating but it does not meet the legal definition of Adultery.

This is also true for kissing, groping, petting, or even oral sex.

We were on a break is it still adultery?

Sex with someone other than your spouse even when your separated can a ground for granting a divorce for adultery. Ayala, 387 S.W.3d at 733-734.

Adultery can include relationships after separation and prior to divorce. You are married until you are divorced. Texas does not recognize legal separation.

Disproportionate Share of Property

Although, Texas is a no-fault divorce state which essentially means that neither party necessarily has to prove the other spouse did anything wrong in order to get a divorce.

However, fault grounds can be relevant in divorce when dividing the community property.

The important language in the Texas Family Code is a "just and right division" and not a 50/50 split as some people think.

The main reason why adultery matters in a divorce is that if adultery can be proven then it can be used to support a request from the spouse not at fault for a disproportionate division of the community property between the parties.

Amount and Duration of Spousal Support

However, if a spouse is eligible under the law to receive spousal support under Texas Law and a Judge is inclined to award spousal support then a Judge may consider marital fault when awarding the amount and duration of spousal support in the divorce.

What Adultery Does Not Do

I sometimes have consults with husbands or wives who are concerned because their spouse has been using the adultery for the purposes of intimidation. I let my consults know that if adultery can be proven it might mean their spouse can get a few extra percentage points of property if there is any property to divide up in the divorce.

Adultery in Texas DOES NOT:

  1. make a spouse eligible for alimony or spousal maintenance
  2. An adultery finding alone will not change the outcome of child custody or conservatorship provisions either.

Adultery may make you a bad spouse, but it does not necessarily make you a bad parent.

Should I hire a private detective?

Often the question I get asked when there is concern on whether an ex is having an affair is whether the person I am consulting with should hire a private detective.

I usually then ask some questions regarding what kind of marital property the parties have together. Unless the parties have substantial marital assets I usually advise clients that the money they would spend on a private detective can be better spent in other ways.

It is important to look at the facts of the case before deciding on whether to hire a private detective. If we spend $10,000 on proving an adultery only to get an extra $2,000 in community property that was not a good use funds.


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Other Articles you may be interested in:

  1. Can I sue my spouse's mistress in Texas?
  2. Is Adultery a Crime in Texas?
  3. My Spouse Has Accused Me of Adultery in my Texas Divorce and I Haven't
  4. Sex, Lies, Rock-and-roll, and Adultery in a Texas Divorce
  5. Can I Sue My Spouse for Mental Abuse in My Texas Divorce?
  6. 6 things You Need to Know Before You File for Divorce in Texas
  7. Texas Divorce Morality Clause: Be Careful What You Ask For
  8. What does Insupportability or No-Fault in a Texas Divorce Mean?
  9. The Simplified Process for an Uncontested Divorce in Texas
  10. Explaining the Contested Divorce Process in Texas

Law Office of Bryan Fagan, PLLC | Houston, Texas Divorce Lawyers

The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with one of our Houston, TX Divorce Lawyers right away to protect your rights.

Our divorce lawyers in Houston TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.

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