Texas treats adultery as one of seven fault grounds for divorce under Tex. Fam. Code § 6.003, but a Texas spouse may also seek a no-fault divorce on insupportability grounds under § 6.001 regardless of whether either spouse committed adultery. Adultery, when proved, can affect property division under § 7.001 (just-and-right) and may bear on spousal maintenance under Tex. Fam. Code § 8.051, but it generally does not affect child custody unless the conduct directly harmed the child.

Scope: This article is general information for a Texas spouse navigating a divorce in which adultery, by either spouse, is in the picture.

Audience: A Texas spouse facing divorce proceedings where marital infidelity may be relevant.

Texas Treats Adultery as a Fault Ground Under Tex. Fam. Code § 6.003

Tex. Fam. Code § 6.003 lists adultery as a fault ground on which a Texas court “may grant a divorce in favor of one spouse if the other spouse has committed adultery.”

In Texas, adultery is legally defined as the voluntary sexual intercourse of a married person with someone other than their spouse. Texas appellate courts have consistently affirmed this definition in divorce cases, making clear that the law specifically requires sexual intercourse to meet the definition. Emotional affairs or inappropriate communications do not constitute legal adultery in Texas.

Texas case law has held adultery may include conduct after the parties have separated but before the divorce decree is signed. The marriage continues until the final decree, meaning an extramarital affair during separation still qualifies as adultery under § 6.003.

Adultery is a civil family-law concept in Texas, not a crime. Texas does not criminalize adultery, and Texas abolished the related civil torts of criminal conversation and alienation of affection under Tex. Fam. Code § 1.107. This means a spouse cannot sue the romantic partner involved in the extramarital relationship.

How Adultery Coexists with No-Fault Divorce Under § 6.001

Tex. Fam. Code § 6.001 permits a Texas court to grant a no-fault divorce on the ground of “insupportability” without proof of any fault by either spouse, and that no-fault path remains available even when adultery has occurred. Texas is a no-fault divorce state, meaning that a spouse can file for divorce without proving wrongdoing by the other spouse, simply stating that the marriage is insupportable due to discord or conflict.

In Texas, there are seven grounds for divorce, which include both fault and no-fault reasons. A Texas petitioner may plead § 6.001 alone, § 6.003 alone, or both grounds in the alternative. Pleading both preserves the option to ask the court to consider fault in property division while not bottling the divorce process to a fault finding.

An innocent spouse can file for a fault-based divorce on the grounds of adultery if they prove voluntary sexual intercourse occurred between a married person and someone who is not their spouse. This strategic flexibility allows the requesting spouse to pursue fault-based grounds while maintaining no fault grounds as a backup.

What Texas Courts Look at Under § 6.003: Evidence and Proof

Under Texas law, adultery in a divorce action may be proved by direct evidence or by circumstantial evidence; the standard of proof is preponderance of the evidence, meaning more likely than not.

Adultery can be proven in Texas through both direct and circumstantial evidence, including emails, text messages, and other forms of communication, but not merely through suggestions or innuendo. To leverage adultery in court, the accusing spouse must provide clear and convincing evidence, such as financial records or witness testimony.

Texas courts have treated certain categories of evidence as probative when corroborated, including:

  • Documented communications (texts, emails, social media messages)
  • Financial records showing unexplained expenses, gifts, or payments to a third party
  • Opportunity-and-inclination evidence demonstrating both means and motive
  • Witness testimony from those with direct knowledge
  • Hotel receipts, credit card statements, and travel records

Whether any particular evidence is sufficient is fact-specific and Texas courts evaluate the record as a whole. A spouse’s testimony alone may not suffice without corroboration.

Texas caveat: Recordings of conversations are subject to the Texas one-party-consent rule under Tex. Penal Code § 16.02. Consult an experienced attorney before relying on a recording the other spouse did not know about.

How Adultery May Affect Property Division Under § 7.001

Texas is a community property state, meaning that all property acquired during the marriage is considered jointly owned. Under Tex. Fam. Code § 7.001, a Texas court divides the parties’ community estate in a manner the court “deems just and right,” which is not required to be 50/50. Fault, including adultery, is one factor a Texas court may consider.

Texas appellate courts have held that a “just and right” division is within the trial court’s broad discretion and may take into account, among other things, the fault of either spouse in the breakup of the marriage, disparity of incomes, and the relative needs of the parties.

In Texas, when adultery is proven, a judge may award a disproportionate share of community property to the wronged spouse, potentially resulting in splits like 55/45 or 60/40 instead of a standard 50/50 division. Judges in Texas may consider the circumstances of an affair, including any community funds wasted on the affair, when determining the division of marital property, potentially leading to a larger share for the innocent spouse.

A spouse who alleges that community funds were spent on an extramarital relationship (such as gifts, travel, or payments to a romantic partner) may also raise a separate constructive-fraud or waste-of-community-property claim. Texas courts treat this doctrine as distinct from fault under § 6.003, and wasted community assets can directly influence the marital estate division.

This article does not give specific division percentages because Texas appellate courts have repeatedly emphasized that just-and-right division is fact-specific and not driven by a fixed formula. The spouse spent community funds on an affair may face consequences in property division, but outcomes depend on the totality of circumstances.

How Adultery May Bear on Spousal Maintenance Under § 8.051 / § 8.052

Spousal maintenance in Texas is governed by Tex. Fam. Code Chapter 8. In Texas, spousal support (or alimony) is only awarded under specific circumstances, such as when the requesting spouse cannot provide for their minimum reasonable needs and meets certain criteria outlined in the Texas Family Code.

Eligibility for court-ordered maintenance under § 8.051 turns on specific statutory criteria, including:

  • The length of the marriage (typically 10 years or more)
  • Family-violence convictions of the other spouse
  • Disability of the requesting spouse
  • Serving as custodian of a child with mental disability or physical disability requiring substantial care

If a spouse is eligible under § 8.051, Tex. Fam. Code § 8.052 lists factors the court considers in determining the amount and duration of maintenance. These factors include the “contribution by one spouse to the education, training, or increased earning power of the other spouse” and “marital misconduct, including adultery and cruel treatment, by either spouse during the marriage.”

When determining spousal maintenance, Texas judges consider various factors, including the adultery of either spouse, but no single factor is determinative in the decision. Adultery can influence the amount and duration of spousal support awarded in Texas, but it is just one of many factors that judges consider when making their decision.

Implication: Adultery is one § 8.052 factor among many; it does not by itself create eligibility under § 8.051 or automatically bar a cheating spouse from receiving maintenance. How much alimony a spouse receives depends on the totality of circumstances, and the unfaithful spouse may still receive an award if they meet statutory eligibility criteria.

Adultery and Conservatorship of Children Under § 153.002

Under Tex. Fam. Code § 153.002, the best interest of the child is the primary consideration in any conservatorship determination. Texas courts prioritize the best interests of the child, and adultery generally does not directly affect custody decisions unless it poses a risk to the child’s well-being.

Texas courts have repeatedly held that marital fault is not a controlling factor in custody decisions. What matters is the child’s best interest, evaluated under the non-exhaustive Holley factors articulated in Holley v. Adams, 544 S.W.2d 367 (Tex. 1976). In Texas, child custody decisions are primarily based on the best interests of the child, and adultery does not automatically disqualify a parent from being considered fit.

Where the underlying conduct directly affected the child (for example, exposing the child to inappropriate situations or unsafe persons), a Texas court may consider those facts as part of the best-interest analysis under § 153.002. A judge may consider the circumstances surrounding a parent’s affair if it poses a risk to the child’s emotional or physical well-being, such as exposing the child to harmful individuals.

If a parent’s behavior related to an affair leads to neglect or instability in the child’s life, it can significantly impact custody decisions made by the court. However, the parental presumption under Tex. Fam. Code § 153.131, that appointing parents as joint managing conservators is presumed in the child’s best interest absent a finding of domestic violence or other specific grounds, is not displaced by adultery.

Adultery does not directly affect child support calculations, which are governed by separate statutory guidelines based on income and number of children.

Common Misconceptions About Adultery and Texas Divorce

Misconception: “If my spouse cheated, I automatically get more property.” Reality: Tex. Fam. Code § 7.001 gives the court discretion; adultery is one factor and there is no statutory bonus. An unequal division may result, but it is not guaranteed.

Misconception: “Texas is a no-fault state, so adultery doesn’t matter.” Reality: Texas permits both no-fault under § 6.001 AND fault-based grounds under § 6.003. The same Texas court may consider fault in property division even when granting divorce on either ground.

Misconception: “If I can prove my spouse cheated, I’ll get full custody.” Reality: Conservatorship turns on the child’s best interest under § 153.002 and Holley factors, not on marital fault. Adultery affect child custody only when the conduct directly impacts the child’s well-being.

Misconception: “Adultery is a crime in Texas.” Reality: Texas does not criminalize adultery. Civil torts of criminal conversation and alienation of affection were abolished by Tex. Fam. Code § 1.107.

Misconception: “Emotional affairs count as adultery in Texas.” Reality: Emotional affairs or inappropriate communications do not constitute legal adultery in Texas, as the law specifically requires sexual intercourse to meet the definition.

Misconception: “If we’re separated, it’s not adultery.” Reality: Texas case law has held that conduct after separation but before the final divorce decree may still constitute adultery for purposes of § 6.003. The marriage continues until the decree is signed.

How a Texas Family Lawyer Can Help

A Texas divorce attorney can analyze whether the facts of a particular Texas marriage may support a § 6.003 adultery plea, including:

  • Whether and how to plead adultery alongside § 6.001 insupportability
  • What evidence is realistically discoverable and admissible under the Texas Rules of Evidence
  • How a Texas court is likely to weigh fault in just-and-right division under § 7.001
  • Whether maintenance under § 8.051 / § 8.052 is realistic on the facts
  • Whether the spouse seeking divorce should pursue fault-based divorce or no fault grounds

A Texas family lawyer can also evaluate whether a separate waste-of-community-property claim is appropriate when marital funds were spent on a third party. This includes reviewing joint bank accounts, financial records, and tracing community funds to the extramarital relationship.

Working with an experienced attorney helps parties involved navigate the emotional turmoil of divorce while making strategic decisions about their financial future and personal property.

FLNT Free Case Alignment Review

If you’re going through a Texas divorce and adultery is part of the picture (by either spouse), FLNT offers a Free Case Alignment Review, a short call to determine whether your case is a fit for our firm. If a fit, the next step is a $275 Attorney Strategy Consultation.

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Frequently Asked Questions

Q: Is Texas a no-fault state? A: Texas allows both. Under Tex. Fam. Code § 6.001 a Texas court may grant a no-fault divorce on the ground of insupportability, and under §§ 6.002–6.007 it may grant a divorce on fault-based grounds, including adultery under § 6.003. A petitioner may plead either or both.

Q: What is the legal definition of adultery in a Texas divorce? A: In Texas, adultery is legally defined as the voluntary sexual intercourse of a married person with someone other than their spouse. Whether particular conduct meets that definition is fact-specific.

Q: Does adultery automatically change the property split in Texas? A: No. Under Tex. Fam. Code § 7.001, a Texas court has discretion to divide the community estate in a manner it deems just and right; adultery is one factor a court may weigh, not a mathematical adjustment.

Q: Does adultery affect alimony in Texas? A: Texas eligibility for spousal maintenance under § 8.051 is independent of adultery. Once a spouse is eligible, § 8.052 lists marital misconduct including adultery as one factor the court considers in setting amount and duration. Adultery does not by itself qualify or disqualify a spouse for maintenance.

Q: Can a cheating spouse still be awarded spousal maintenance in Texas? A: Possibly. Eligibility turns on § 8.051 criteria; adultery is a § 8.052 factor that may reduce the amount or duration but does not categorically bar a maintenance award.

Q: Does adultery affect child custody in Texas? A: Generally no, unless the conduct directly affected the child. Tex. Fam. Code § 153.002 makes the child’s best interest the primary consideration, and Texas courts apply the Holley v. Adams factors. The parental presumption under § 153.131 is not displaced by adultery.

Q: What evidence proves adultery under Texas law? A: Adultery may be proved by direct or circumstantial evidence at a preponderance standard. Texas courts have considered documented communications, financial records, opportunity-and-inclination evidence, and witness testimony. Whether evidence is sufficient is fact-specific.

Q: Is it adultery in Texas if it happened after we separated? A: Texas case law has held that conduct after separation but before the final divorce decree may still constitute adultery for purposes of § 6.003. The marriage continues until the decree is signed. There is no legal separation status in Texas that changes this.

Q: Can I sue the third party in Texas? A: No. Texas abolished the civil torts of criminal conversation and alienation of affection under Tex. Fam. Code § 1.107.

Q: Is adultery a crime in Texas? A: No. Texas does not criminalize adultery.

Q: Should a Texas spouse plead fault grounds or no-fault? A: That’s a strategic question turning on the specific facts, the available evidence, and how a Texas court might weigh fault in property division and maintenance. A Texas family lawyer evaluates this on a case-by-case basis.

Q: Does adultery affect child support in Texas? A: Adultery does not directly affect child support calculations, which follow statutory guidelines based on income and number of children rather than marital fault.

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Disclaimer

This article is general information about Texas family law. It is not legal advice and does not create an attorney-client relationship. Reading this article does not establish you as a client of Family Law of North Texas. For advice about your specific situation, contact Family Law of North Texas at (945) 300-5522 or another licensed Texas attorney.