Is Adultery a Crime in Texas?

Picture this – it’s another regular day in Texas. Two friends meet at a coffee shop, one looking noticeably distressed. After silence, he blurts out, “I think my spouse is having an affair.” Immediately, a whirlwind of questions comes flooding in, and surprisingly for some, the question, “is having an affair illegal?”

Here’s the short answer: Having an affair isn’t a crime in Texas. But hold on, don’t click away just yet. Because while it might not land you in jail, straying from the marital bed can complicate divorce proceedings. An affair can influence everything from property division, spousal support to child custody.

Now, I know what you’re thinking. What about other states? What about the person they’re having an affair with? Does the law have anything to say about them? Well, buckle up, because we’re about to embark on a rollercoaster ride through the unpredictable world of adultery laws. We will dissect everything from Texas’s divorce courtrooms to North Carolina’s unique “alienation of affection” lawsuits.

So, grab a cup of coffee (or perhaps something stronger). Let’s dive headfirst into the legal labyrinth of love, infidelity, and the law. It’s going to be a wild ride!

Who Needs a Crime Drama When You Have Marriage Laws?

Suppose you’ve engaged in a conversation about adultery and divorce. While it’s common knowledge that this factor plays a significant role, the precise legal mechanisms involved may not always be apparent. In such instances, you’ve likely come across the fact that Texas, like many other states, frequently takes infidelity into account when ending a marriage. Texas, in particular, has a well-known stance on adultery in divorce proceedings, sparking debates and raising eyebrows.

Adultery in Texas doesn’t just trigger emotional turmoil. It also sets in motion a legal process that can significantly shape the divorce landscape. When marital ties become undone in the Lone Star State, the court doesn’t take any evidence of an affair lightly. It can steer the judge’s decisions in pivotal aspects of the divorce process.

Let’s say the couple in question owns a substantial amount of property. Evidence of infidelity can influence how that property gets divided in the divorce settlement. The unfaithful spouse might be on the receiving end of a less favorable division of assets. Judges may consider unfaithfulness and adjust the financial support one spouse is obliged to provide to the other post-divorce. Moreover, if spousal support or alimony is a part of the conversation, adultery can again play a decisive role.

However, it’s important to note that while Texas law is firm on considering adultery in divorce proceedings, this doesn’t mean the unfaithful party will face criminal charges.

This could lead us to a web of intriguing questions. How can an act that can significantly shape the course of a civil proceeding, like a divorce, not be recognized as a crime under criminal law? The separation of civil and criminal jurisdictions has a role to play here, but we’ll leave that for another day.

Is Adultery a Crime in Texas? Interplay of Adultery and Texas Family Code

A torrid affair might not earn you handcuffs in Texas. However, it’s worth noting that adultery is not entirely off the legal hook. Contrary to what you might assume, infidelity breaches certain civil obligations established in the Texas Family Code, albeit it is not classified as a criminal act.

If you’re curious about how the unfaithful spouse can be held accountable for their indiscretions, take comfort in knowing that the Texas Family Code offers various ways they might face consequences. Notably, one of the most significant areas impacted by an extramarital liaison lies in marital property distribution.

During the dissolution of a marriage, the assets and property amassed throughout the union become subject to division. In this instance, a spouse’s unfaithfulness can be crucial in deciding who gets what. In the grand scheme of things, an affair can tip the scales when dividing up the marital assets, acting as a silent participant in the courtroom drama. While Texas may not legally punish adultery as a crime, its civil consequences can undeniably impact individuals involved.

Defining Adultery Under Texas Family Code

Within the intricacies of Texas law, it becomes crucial to understand the precise legal definition of adultery, particularly when assessing its implications. As per Section 6.003 of the Texas Family Code, the term ‘adultery’ bears a specific connotation. This section legally defines adultery as the deliberate engagement in sexual intercourse by a married individual with a person who is not their spouse.

Contrary to perhaps some broader social interpretations of the term, the legal definition in Texas is quite clear-cut. It doesn’t account for emotional affairs or other non-physical forms of betrayal. Texas law has instead narrowed its scope to the physical act of infidelity. The letter of the law becomes the guiding principle, offering a clear criterion for what constitutes adultery in the Lone Star State. This clarity is crucial when evaluating potential consequences in divorce proceedings or disputes over the division of assets.

Impact of Adultery on Property Division in Texas Divorce

In Texas, recognized as a “community property” state, the standard practice during divorce proceedings is the equitable distribution of marital property. This means, in most cases, assets and debts accrued during the marriage are split evenly – a 50/50 division. However, the court can deviate from this standard practice in situations where adultery is factored in.

The wronged spouse may receive a larger portion of the community property – more than the typical 50%. This disproportionate division of assets typically occurs when the unfaithful spouse has utilized communal funds to support or facilitate their extramarital affairs. Additionally, if it’s determined that the affair was the primary cause of the dissolution of the marriage, the court might also decide in favor of the innocent party.

Influence of Adultery on Spousal Support Decisions

Beyond the division of assets, adultery can significantly determine the amount and duration of spousal support. Texas law outlines specific eligibility criteria for receiving spousal support in the event of a divorce.

If the spouse qualifies for spousal support according to these criteria, the court may consider marital misconduct, such as adultery, when deciding the support amount and duration. It’s not a guarantee, but an act of adultery could potentially sway the judge’s decision, leading to higher spousal support payments or longer duration for the wronged spouse.

So, while adultery might not be a crime per se in Texas, it does carry substantial implications for the unfaithful party in divorce proceedings. The cheater might not face criminal charges, but they could find themselves losing financial decisions in court.

Child Custody and Adultery

Adultery in the Texas Family Code 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.

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:

  1. A sex offender
  2. Someone with a violent past
  3. Problems with Child Protective Services
  4. Problems with 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 partner’s 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.

Comparative Analysis of Adultery Laws in Different States

While the state of Texas may not categorize adultery as a crime, the legal standpoint varies across the United States. In total, 21 states have laws criminalizing adultery, primarily defining it as sexual intercourse between a married individual and someone other than their spouse. Usually, it’s treated as a misdemeanor in these states, but a handful list it as a felony. Here’s the breakdown:

States Where Adultery Is a Misdemeanor:














New York

North Carolina

North Dakota


Rhode Island

South Carolina





States Where Adultery Is a Felony:









The Alabama Criminal Code classifies adultery as a Class B misdemeanor. According to Alabama Code § 13A-13-2, adultery occurs when a person engages in sexual intercourse with someone other than their spouse and lives together in cohabitation when either of them is married.

If convicted under this law, the offender could face a maximum sentence of six months in jail and fines up to $3,000. Alabama enforces a one-year statute of limitations for prosecuting adultery, and similar to many other states, it is rarely pursued.


Adultery is considered a class 3 misdemeanor in Arizona under Arizona Revised Statutes, ARS 13-1408. In Arizona, 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 the offense.


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.

New Hampshire

Effective January 1, 2015, adultery is no longer be a crime in New Hampshire. Prior to that adultery was a class B misdemeanor.

New York

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.

North Carolina

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, PLLC. 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.

North Dakota

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.

Only the spouse of the alleged offender can initiate a prosecution under this section, and such a prosecution must be initiated within one year from the 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

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.

South Carolina

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.

Understanding “Is Having an Affair Illegal?”

When delving into the question, “is having an affair illegal?” it’s essential to navigate through the complex labyrinth of legal implications surrounding this emotionally charged issue. There’s no simple yes or no answer, as laws related to adultery vary widely among jurisdictions.

Infidelity in Texas: Is it a Crime?

In the State of Texas, a unique perspective on adultery is observed. While having an extramarital affair can significantly influence divorce proceedings, Texas law does not categorize adultery as a criminal act. However, the Texas Family Code includes provisions related to infidelity that can profoundly impact divorce outcomes.

The Adultery Definition According to Texas Law

When addressing “is having an affair illegal?” it’s vital to understand what constitutes adultery legally. As per the Texas Family Code section 6.003, adultery implies a married person engaging voluntarily in sexual intercourse with an individual other than their spouse.

Adultery’s Impact on Property Division

The repercussions of an extramarital affair in a divorce become notably apparent when marital property division comes into the picture. Texas operates under the “community property” law. This law typically dictates a 50/50 split of the marital property. However, if an affair has occurred, the wronged spouse might receive a larger share, especially if the unfaithful spouse misused community funds to facilitate the affair.

Spousal Support and Adultery

Considering the question “is having an affair illegal?” and its implications, we cannot overlook the effects on spousal support. If a spouse is entitled to spousal support under Texas law, the court may take marital fault, including adultery, into account while determining the amount and duration of support.

Child Custody Considerations

While the Texas Family Code does not directly link adultery to eligibility for alimony or child custody, the presence of a new significant other in the picture can substantially influence the judge’s decision on what’s in the “best interest of the child”. A parent may risk losing custody if their new partner has a questionable past, such as criminal history or involvement with drugs.

A Comparison: Adultery Laws Across Different States

There’s an intriguing disparity when comparing Texas’s stance on adultery with the laws of other states. As of the writing of this article, 21 states still categorize adultery as a criminal act, with penalties ranging from misdemeanors to felonies. For instance, adultery in states like Idaho, Massachusetts, Michigan, Oklahoma, and Wisconsin is viewed as a felony, bringing potentially harsher punishments.

Alienation of Affection: The North Carolina Example

Another fascinating perspective is the North Carolina’s approach to dealing with external parties involved in the breakup of a marriage. In North Carolina, a “faithful spouse” may sue the “other” person involved in an affair for “alienation of affections.” This legal provision focuses on the third party’s role in destroying the affectionate relationship that once existed between the married couple.

Wrapping Up: What Does it Mean to Ask “Is Having an Affair Illegal?”

When we examine the question, “is having an affair illegal?” the analysis must include a variety of laws and their diverse implications in different jurisdictions. From the impact on divorce proceedings to the criminal classification of adultery, the legal terrain is far from straightforward. Thus, anyone dealing with these complex issues should consult with a knowledgeable legal professional to understand their rights and potential legal consequences.

Divorce, adultery, and family law matters are delicate subjects with profound personal and legal implications. It’s crucial to have skilled legal counsel to navigate these often-emotional issues. The attorneys at the Law Office of Bryan Fagan, PLLC, stand ready to provide guidance and support during these challenging times. Call us today for a free consultation to discuss your options and better understand what’s at stake in your situation.

And So, The Gavel Drops: The Affair Verdict

There we have it, folks! It’s been quite the journey. We’ve journeyed together through the winding paths of Texas adultery laws, navigated the tumultuous seas of civil versus criminal jurisdiction, and arrived at the fascinating crossroads where law and human emotions intersect.

As we conclude this journey, it’s time to reflect on what we’ve learned. Adultery, furtive glances, and whispered secrets have consequences beyond the initial thrill and clandestine meetings. The Lone Star State, in its wisdom, has decreed that while an affair might make for intriguing Hollywood drama, it doesn’t quite cut a criminal charge.

Yes, that’s right, to recap: having an affair in Texas is not a criminal act. You won’t be wearing stripes in prison for straying from your marital vows. But before you breathe a sigh of relief, remember these actions have a ripple effect, particularly if you find yourself during a divorce.

So, in the grand chessboard of life, where every move might have unexpected consequences, an affair can tip the scales, influencing property division, child custody, and alimony in a divorce settlement. The echo of your actions, however discreet they might have seemed at the time, could reverberate in the austere corridors of a Texas courtroom.

But, as we all know, life isn’t black and white nor the law. So whether you’re a law enthusiast or someone just looking to understand the consequences of infidelity better, hopefully, you’re walking away with a greater appreciation for the intricate dance between our actions and the law.

We hope you’ve enjoyed this wild ride through the legal labyrinth as much as we have. And remember, Texas might not put you behind bars for an affair, but the gavel of justice might still drop heavy. Ultimately, every action has its day in court, so choose wisely, friends!

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Frequently Asked Questions about Adultery Laws

Is it against the law to have an affair?

Whether an affair is against the law depends on the state where you live. For example, in Texas, while it is not a criminal act, adultery can affect divorce proceedings and asset division. However, some states do have laws that consider adultery a crime.

In what states is adultery a crime?

In the U.S., 21 states, including Alabama, Arizona, Florida, and Georgia, still classify adultery as a crime. Among them, states like Idaho, Massachusetts, Michigan, Oklahoma, and Wisconsin even categorize adultery as a felony.

What is the punishment for adultery?

The punishment for adultery varies by state. In states where it is a crime, it could range from fines to imprisonment. However, it is rarely prosecuted. In other states, while not a crime, it can have an impact on divorce proceedings.

Is it illegal to have a boyfriend while married?

Legally speaking, it is not generally illegal to have a boyfriend while married. However, it can be considered adultery and could have legal consequences in the context of a divorce. This is true especially in states where adultery affects the division of marital property or spousal support.

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