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Can I Sue My Spouse’s Mistress in Texas? No. Texas Family Code §1.107 abolishes a spouse’s right to sue a third party for alienation of affection, and §1.106 does the same for criminal conversation. Texas law does not allow you to file a lawsuit against your spouse’s mistress—or against any other third party—simply because they had an affair with your spouse.
For most people, however, that is not really the end of the conversation. It is only the beginning. What they are really asking is something different: If I cannot sue her for the affair itself, can I recover the money my spouse spent on her? Can the affair affect my divorce? Can I hold anyone legally responsible for the damage this caused to my family?
Those questions deserve more than a simple yes-or-no answer because they involve entirely different areas of Texas law. While the Legislature closed the door on so-called “homewrecker” lawsuits decades ago, it left other remedies intact. Claims involving fraud on the community, reimbursement, disproportionate division of marital property, and genuinely independent legal wrongs may still exist depending on the facts. Likewise, although adultery alone rarely determines child custody, the circumstances surrounding an affair can sometimes become relevant if they affect a child’s safety, stability, or best interests under Texas Family Code §153.002.
At The Law Office of Bryan Fagan, PLLC, we believe that understanding these distinctions empowers families to make informed decisions instead of emotional ones. Founded by Bryan Joseph Fagan, a graduate of South Texas College of Law and a recognized authority on Texas family law, our firm is committed to helping Texans navigate divorce with clarity, compassion, and practical legal guidance. In this article, we’ll explain what Texas law actually says, separate common myths from legal reality, and help you understand which claims are closed, which remedies remain available, and how to protect your future moving forward.
The Short Answer
No. You cannot sue your spouse’s mistress in Texas — §1.107 and §1.106 abolished both third-party claims. Suing her for emotional distress instead almost never works either: Texas treats that tort as a narrow gap-filler, and courts will not let it revive a claim the legislature removed. What you may be able to recover is community money your spouse spent on her.
Key Takeaways
- There is no claim against her for the affair. §1.107 and §1.106 closed both of them, and the statutes do not distinguish by gender or relationship.
- Emotional distress is a real tort, and it is the wrong tool here. Texas requires conduct that is extreme and outrageous by an objective standard — a much higher bar than devastating.
- It is a gap-filler, not a general remedy. Where another legal theory covers the conduct, or where the legislature has deliberately closed one, courts do not let this tort fill the space.
- A separate wrong is a different matter. If she defamed you, recorded you, or harassed you after the fact, that is a claim about what she did to you — and it stands on its own facts, not on the affair.
- The identity of the other person changes nothing. Whether you are asking about your spouse’s mistress, a girlfriend, a boyfriend, a coworker or a stranger, the answer is the same.
- Money is the exception. Community funds your spouse spent on her are recoverable through your divorce, under §7.009.
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Can I Sue My Husband’s Mistress?
Answer: No. Texas law does not allow you to sue your husband’s mistress simply because she had an affair with your spouse. Texas Family Code §§1.106 and 1.107 abolished the common-law claims of alienation of affection and criminal conversation, leaving no civil cause of action against a third party based solely on an affair. If you want to understand why these claims no longer exist and how Texas law evolved, read our guide on Can You Sue a Homewrecker in Texas?.
Many people believe there must be an exception if the other person knowingly pursued a married individual, knew children were involved, or continued the relationship after the affair was discovered. Texas law does not make those distinctions. While those facts may be emotionally important, they do not revive claims the Legislature intentionally abolished. The focus instead shifts to the legal relationship between the spouses and the remedies available in the divorce itself.
That does not mean the affair is irrelevant. In more complex divorces, if community funds were used to pay for gifts, vacations, hotel rooms, rent, or other expenses connected to the affair, Texas Family Code §7.009 may allow the court to address those losses through a fraud-on-the-community claim against your spouse. Likewise, if the third party committed a separate legal wrong—such as defamation, harassment, or invasion of privacy—that claim stands on its own facts rather than on the affair itself.
It is also important to think strategically instead of emotionally. Public confrontations, social media posts, or attempts to embarrass your spouse or the other person rarely improve your legal position and can sometimes complicate an already difficult divorce. Our article on Embarrassing Your Spouse During a Texas Divorce explains why taking the high road often protects both your case and your peace of mind.
The better question is not whether you can sue your husband’s mistress, but whether the affair affected your finances, your property division, or another legally recognized issue. By understanding the difference between emotional accountability and legal responsibility, you can focus on the remedies Texas courts actually provide and make informed decisions that protect your future and your family.
Can I Sue My Husband’s Mistress for Emotional Distress?
✗ Almost never
This is the question underneath the question, and it is asked more often than the first one. The answer is almost never — but the reasoning matters, because it tells you where the narrow opening actually is.
Intentional infliction of emotional distress is a real cause of action in Texas. It generally requires that the defendant acted intentionally or recklessly, that the conduct was extreme and outrageous, and that it caused severe emotional distress. Every one of those words is doing work, and two of them are where these claims fail.
“Extreme and outrageous” is not a measure of how much it hurt. It is an objective standard, and the conduct has to sit well beyond the ordinary insults, indignities and betrayals that people endure in adult life. Courts apply it to behavior that a reasonable person would find intolerable in a civilized community. An affair — even a long one, even a cruel one, even one conducted with someone you trusted — has not generally been treated as clearing that bar.
And the tort is a gap-filler. This is the part almost nobody explains, and it is the more important of the two. Texas treats intentional infliction of emotional distress as a remedy of last resort — available where no other legal theory addresses the conduct, and not available as an alternative label for a claim that exists elsewhere or that the legislature has deliberately closed.
Put those together and you can see why these suits fail. The legislature looked at exactly this conduct — a third party involving themselves in a marriage — and decided there would be no claim for it. Allowing the same facts through under a different name would undo that decision. Courts recognize the attempt, and they say so. The statutory history behind that decision is worth reading if you want to understand why the door was closed rather than simply that it was.
Put concretely: discovering an affair and experiencing severe emotional pain is real, and no court is going to pretend otherwise. But unless the other person independently defamed you, stalked you, invaded your privacy, or committed some other legally recognized wrong, the emotional harm on its own generally does not create a separate lawsuit against her. The distress is not in doubt. The claim is.
Most People Miss
The problem is not that your distress was not severe. It is that the tort is measured by the conduct, not by the consequences — and that it cannot be used to reopen a claim the legislature closed on purpose.
This describes the general structure of Texas law, not a legal opinion about your situation.
What a Genuinely Separate Claim Looks Like
✓ Worth checking
There is a real distinction here and it is easy to miss. You cannot sue her for the affair. You may be able to sue her for something she did to you that has nothing to do with the affair — and people in this situation sometimes have both, without realizing the second one is separate.
Defamation. If she told people something false and damaging about you — to your employer, your family, your community — that is a claim on its own facts. The affair is context, not the wrong.
Invasion of privacy. If she accessed your accounts, recorded you without authorization, or published private material about you, the same applies.
Harassment or stalking. Repeated unwanted contact after the relationship ended, showing up where you live or work, contacting your children. There are civil and criminal avenues here that have nothing to do with §1.107.
Abuse of a professional role. If she was your spouse’s therapist, counselor, physician, or someone else holding a position of trust, the analysis changes entirely, because the wrong is the abuse of that role. That one is genuinely different and worth specific advice.
The test in every case is the same: strip the affair out of the story. If a wrong is still standing, you may have a claim. If the wrong only exists because of the relationship, you do not.
Warning
Do not contact her to gather evidence for any of this. The fastest way to lose a genuine separate claim is to hand her one of her own — harassment, a protective order, or simply a sympathetic witness in your divorce. Take what you already have to a lawyer instead.
Can I Sue My Wife’s Lover?
Answer: No. Can I Sue My Spouse’s Mistress in Texas has the same answer whether the third party is a mistress, a boyfriend, a wife’s lover, or anyone else. Texas Family Code §§1.106 and 1.107 abolished the claims of alienation of affection and criminal conversation without regard to gender, so the law applies equally to husbands and wives.
Some people assume the answer changes when a wife has an affair rather than a husband. It does not. Texas law focuses on the type of claim being asserted—not on who had the affair or the identity of the third party. If you’re curious about other unusual civil claims and why some lawsuits exist while others do not, our article on So You Wanna Sue? What Are Some of the Weirdest Lawsuits You Could File in Texas? provides additional context.
The same analysis applies if you are considering a claim for emotional distress. Texas courts generally will not allow an intentional infliction of emotional distress claim to serve as a substitute for an abolished homewrecker lawsuit. Likewise, changing the relationship between the parties—from a mistress to a boyfriend, coworker, family friend, or stranger—does not create a new legal cause of action. As we explain in Can You Sue Another Woman for Destroying Your Marriage?, the identity of the other person does not change your legal options.
That does not mean every affair is legally irrelevant. In more complex divorce cases, adultery may affect issues such as fault-based divorce under Texas Family Code §6.003, reimbursement claims, or fraud on the community if marital assets were spent on the relationship. If community funds, hidden accounts, or significant property are involved, the focus should shift from suing the third party to protecting your financial interests and pursuing the remedies Texas law actually recognizes.
The key takeaway is simple: whether your spouse had an affair with a mistress, a boyfriend, a coworker, or someone else, Texas law reaches the same conclusion. Rather than pursuing a lawsuit that the courts cannot hear, concentrate on the legal issues that can influence your divorce, your property division, and your family’s future.
What You Can Actually Recover
✓ Open to you
She is out of reach. The money is not. Texas Family Code §7.009 addresses fraud on the community: where a court finds that a spouse depleted community property for their own benefit, the statute directs the court to calculate the depletion, compute the value of the reconstituted estate, and divide that figure rather than what happens to be left. The court may award you a share of the remaining estate, a money judgment against your spouse, or both.
Hotels, flights, gifts, rent, a phone line, transfers with no other explanation. If community funds went to her, that is not a grievance — it is an accounting question with a statutory remedy attached.
How that claim is built — establishing what was community property, reconstructing the spending, tracing it, and presenting it — is set out step by step in Can You Sue a Homewrecker in Texas?, together with what does not automatically qualify. If you think there is money to account for, start there and bring the statements.
The Distinction That Matters
The claim is not against her. It is against the estate. You are not asking a judge to punish anyone — you are asking the court to put the missing money back before dividing what remains.
Who Handles the Financial Side
If the claim worth having is about money that left the community estate, the work is tracing and quantifying it. At our firm that sits with a different attorney than the one whose name is on this article.
Tracing & Fraud on the Community
Jessica Lesser
Board Certified Family Law Attorney · Dallas
Jessica’s practice centers on business valuation and complex property division. When the question is where community money went and how much of it should come back, that is the work — reconstructing the spending, tracing it out of the estate, and putting a number on the claim that will hold up under §7.009.
Our attorneys each focus on different aspects of family law. Cases involving financial tracing, fraud on the community, and complex property issues are directed to the attorney whose practice best matches those issues. We route by the problem, not by who answers the phone.
What I Tell People Who Ask About Her
Answer: Can I Sue My Spouse’s Mistress in Texas? In almost every case, no. That answer usually surprises people because it is not the answer they were hoping for. Texas law does not allow a lawsuit against your spouse’s mistress for the affair itself, and it almost never allows a separate claim based solely on the emotional pain the affair caused.
After explaining what the law does not allow, the conversation shifts to what it does allow. Instead of focusing on the third party, I ask what the affair cost the marital estate. If community funds were used to pay for gifts, vacations, rent, hotel rooms, or other expenses connected to the relationship, Texas Family Code §7.009 may provide a remedy through a fraud-on-the-community claim during the divorce.
In straightforward divorces, that may be the end of the analysis. In more complex cases, if significant assets, hidden accounts, business interests, or extensive financial tracing are involved, the focus becomes documenting where community property went and whether reimbursement or a disproportionate division of the marital estate is appropriate. Those are issues a Texas court can actually resolve.
People also sometimes assume they can simply file a different lawsuit against their spouse instead. While there are situations where a former spouse may be sued for conduct unrelated to the divorce itself, those claims are governed by entirely different legal principles. Our article on Understanding Legal Grounds for Suing Your Ex-Spouse in Texas explains when separate legal claims may exist and why they should not be confused with abolished homewrecker lawsuits.
The goal is not to tell people what they want to hear—it is to direct them toward the remedies Texas law actually recognizes. When you understand the difference between emotional accountability and legal responsibility, you can focus your time, resources, and energy on protecting your financial future, your children, and the outcome of your divorce instead of pursuing claims the courts cannot grant.
You cannot make her pay for the pain. You can make the estate whole.
If Community Funds Went to Her
Bring whatever financial records you already have.
Bank statements, credit card statements, transfers, travel confirmations — anything showing community funds that may have gone to her. We will help determine whether those expenditures may support a fraud-on-the-community claim, affect property division, or both, and tell you honestly if they will not.
Schedule a Consultation Call 281-810-9760Related Reading
- Can You Sue a Homewrecker in Texas? — the full legal background: the statutes themselves, why they were abolished, how a fraud-on-the-community claim gets built, and what does not qualify.
- Can You Sue Another Woman for Destroying Your Marriage? — the same answer from a different angle: why the identity of the other person is legally irrelevant, and what to do when you know exactly who she is.
- Property Division and Enforcement in Texas — where the money claim lives.
Conclusion:
If you’ve been asking yourself, “Can I Sue My Spouse’s Mistress in Texas?”, the answer is only part of the larger legal picture. While Texas law closes the door on lawsuits against a third party for an affair, it may open others involving fraud on the community, property division, or custody issues when the circumstances warrant. Understanding the difference can help you focus on the legal remedies that may actually protect your financial future and your family, rather than pursuing claims Texas courts simply do not recognize.
Every divorce is different. In straightforward situations, a clear explanation of your rights may be all you need to move forward with confidence. In more complex cases—particularly if your case involves significant community assets, allegations of adultery, hidden spending, business interests, or questions about how a parent’s decisions affect a child’s well-being—the right legal strategy becomes even more important. At The Law Office of Bryan Fagan, PLLC, our attorneys focus on matching families with the attorney whose experience best fits the issues involved, whether that means resolving a straightforward divorce efficiently or developing a strategy for complex financial or custody disputes. Our goal is to empower you with the knowledge, guidance, and advocacy needed to protect what matters most and move into your next chapter with clarity and peace of mind.
About the Author
Bryan Fagan — Founder & Managing Attorney
I founded The Law Office of Bryan Fagan, PLLC, now one of the largest family law firms in Texas, with offices across the state. I have been serving Texas families since 2012. I earned my law degree at South Texas College of Law and hold an undergraduate degree in business and finance. I am the author of several family law guides for Texans, including The Texas Divorce Handbook.
Licensed by the State Bar of Texas. Full profile. For the firm’s broader divorce practice, see Texas Divorce Attorney.
Questions People Ask
No. Texas Family Code §1.107 bars a claim against a third party for alienation of affection and §1.106 bars criminal conversation. Both were abolished by statute, and neither distinguishes by gender or relationship. Suing her for emotional distress instead almost never succeeds. Community money your spouse spent on her may be recoverable under §7.009.
No. Texas Family Code §1.107 bars a claim against a third party for alienation of affection and §1.106 bars criminal conversation. Both were abolished by statute and no set of facts reopens them. What you may be able to pursue is community money your husband spent on her, through your divorce under §7.009.
Almost never. Intentional infliction of emotional distress requires conduct that is extreme and outrageous by an objective standard, which an affair generally does not meet. It is also a gap-filler tort, so courts will not allow it to revive a claim the legislature deliberately closed under §§1.106 and 1.107.
No. Texas abolished both third-party claims that once permitted it, and the statutes make no distinction based on who the third party is. You can sue her for a genuinely separate wrong she committed against you — defamation, invasion of privacy, harassment — but not for the affair or for the end of the marriage.
No. The answer does not change based on which spouse had the affair or the gender of the third party. §§1.107 and 1.106 are written without reference to gender. The emotional-distress route fails for the same reasons, and the same separate-wrong test applies.
It depends what she lied about. Lying to you about the affair itself, or denying it when asked, does not create a standalone claim — that falls within the conduct Texas closed off. Making false statements about you to other people, where those statements damaged your reputation, is a different matter and may support a defamation claim on its own facts.
It is an objective standard, not a measure of how badly you were hurt. The conduct has to go well beyond the insults, indignities and betrayals people encounter in ordinary life — behavior a reasonable person would find intolerable. Texas courts have not generally treated an affair as clearing that bar.
A claim available only where no other legal theory addresses the conduct. Texas treats intentional infliction of emotional distress that way, which is why it cannot be used as an alternative label for a claim that already exists elsewhere or that the legislature has deliberately abolished.
Often you can pursue it. Under §7.009, where a court finds actual or constructive fraud on the community it must calculate how much the estate was depleted, reconstitute the estate, and divide that value — and it may award you a money judgment against your spouse. The claim runs through your divorce, not against her.
