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Adultery in Texas Divorce: How It Affects Child Custody and Alimony

Sophia Merton
September 12, 2022

Every year, hundreds of thousands of marriages are damaged in the U.S. by infidelity. If you or your spouse cheated and are now discussing divorce, you might be wondering about adultery in a Texas divorce and how it affects child custody and alimony.

Under Texas law, adultery can impact the decision a court makes about financial issues such as property division and spousal support. However, judges aren’t usually permitted to consider the adultery of a parent when deciding about child custody and visitation.

Let’s take a look at what you need to know about divorce in Texas when adultery is involved.

What Is Considered Adultery in Texas?

Adultery is one of the fault-based grounds for divorce under Texas Family Code 6.003.

man and woman in adulterous relationship texas divorce
Adultery can have an impact on some, but not all, issues in a Texas divorce. However, it can be difficult to prove to a court because of the secretive nature of infidelity.

An act of adultery is committed if a married person has voluntary sexual intercourse with another party that isn’t their spouse. However, in order for a Texas court to recognize adultery, it must be proven by the other spouse.

What Is Child Custody in Texas?

Child custody issues in Texas are divided into two different categories. These are:

  • Conservatorship
  • Possession and access
mother playing ukulele for child with primary custody in texas divorce
If you are getting divorced with children, child custody is probably one of the issues that you are most concerned about.

Conservatorship covers the duties and rights of parents to make decisions about their children, such as medical decisions, educational decisions, and psychiatric decisions. One person might be allowed to make all the decisions, which is known as Sole Managing Conservatorship, or both parents might jointly have the right to make these decisions, which is known as Joint Managing Conservatorship.

Texas courts are interested in what is in the best interest of the children when it comes to these issues.

Possession and access cover when parents can visit with their children or when they have physical custody. The two statutory schedules for possession and access are:

  • Standard schedule
  • Extended standard schedule

These schedules outline how parenting is split between two parents. That being said, courts can award a different schedule if they believe it is in the best interest of the child. The involved parties can also agree on a possession and access schedule that fits with their needs so long as it is still in the best interest of the children.

If you're concerned about child custody, you are probably also interested in learning more about child support. This article covers how child support is calculated in Texas.

What Is Alimony in Texas?

In Texas, court-ordered payments from one spouse to the other after the divorce is final is known as spousal maintenance. Couples can also agree to alimony arrangements as a part of their divorce settlement, which is known as contractual alimony.

money used for alimony in texas divorce
Texas courts have to follow strict guidelines when awarding court-ordered spousal maintenance, and you might not be awarded maintenance even if you qualify. However, couples can come to their own agreement regarding alimony in the divorce settlement.

In some cases, courts might award temporary spousal support as a temporary order. This might occur in order to help the couple maintain the status quo while a divorce is pending.

In a recent post, we covered the topic of spousal support in Texas at great length. In short, though, it's important to understand that it is very difficult to be awarded spousal maintenance by Texas courts. Even if you do win spousal maintenance as a part of a divorce, there are limits to the percentage of a person's monthly resources that can be allotted toward spousal support.

In short, though, Texas law doesn't provide for alimony as a right, nor is it prohibited. An individual has to meet specific qualifications in order for a court to be allowed to order spousal maintenance payments. The most common way for people to receive this type of support through a court order is by being married for more than ten years and being able to prove that they won't be able to meet their basic needs independently.

There are also parameters set on the duration of court-ordered spousal support payments in Texas. These timeframes range from five to ten years. Spousal maintenance payments are commonly paid monthly.

If you have learned that your spouse was cheating on you and you're filing for divorce, it can be tempting to try and make the process as painful as possible for them and bring the case in front of a court with the hopes of winning big. It doesn't typically work this way, though, and you will likely be disappointed if you expect to be awarded massive amounts of spousal support or a lion's share of the property.

Curious to know how much to budget for your divorce? Learn how much divorce costs in Texas here.

How Is Adultery Proven in Divorce?

Are you considering filing for divorce based on the grounds of adultery? If so, you’ll want to understand that the court will require you to prove that the affair occurred.

woman reading text messages of husband in divorce
You can use direct or circumstantial evidence to prove that your spouse committed adultery, but it needs to go beyond mere suggestion or innuendo.

This means that it isn’t enough for you to simply state that your spouse cheated on you. You will need to provide evidence that supports and proves the claims you are making.

Unfortunately, adultery can be very difficult to prove because it is secretive by its very nature. You don’t need to prove that your spouse actually had sexual intercourse with another person as long as you can provide enough circumstantial evidence that points towards the existence of the affair.

Some of the types of evidence you can produce to show that your spouse was most likely involved in an adulterous affair include:

  • Bank statements or credit card statements
  • Phone records
  • Text messages
  • Videos
  • Photos
  • Emails
  • Direct messages from social media or other social media activity that is suspicious

The evidence you provide will need to make it reasonably clear that your spouse was committing adultery during your marriage. Some individuals might enlist the help of a private investigator in order to get the evidence they need to prove adultery to the court.

All that being said, it's a good idea to talk to your lawyer about how adultery could impact your individual case. You might find that it makes sense to file a no-fault divorce even though you feel that your spouse is responsible for your relationship ending.

When a divorce goes to trial, the whole process can get very complicated and expensive. The more evidence that each side of the case is introducing, the longer you can expect it will take for a ruling to be made by the court.

(Check out this post if you're wondering how long a divorce takes in Texas.)

If you are choosing to represent yourself in your Texas divorce, (which, for the record, you have every right to do,) you’ll need to get very familiar with the Texas rules of evidence. These are guidelines that let you know what types of evidence can be brought in front of a judge. Representing yourself in a contested, fault-based divorce is not an easy feat, and you should think seriously about whether or not you’re up for the task. You might find that hiring a divorce attorney is well worth the cost.

Are you considering getting divorced without the help of an attorney? Make sure you read this post about how to file for divorce in Texas without a lawyer.

How Adultery Affects Child Custody in a Texas Divorce

In most cases, the child custody arrangement that results from your divorce will not be impacted by a spouse’s adulterous behavior. Usually, there needs to be a compelling correlation in order for the child custody arrangements to be affected by adultery.

child outside with teddy bear in child custody case in texas
Child custody usually isn't impacted by adultery. However, if one spouse can prove that the infidelity of the other negatively impacted the children or put them at risk, cheating on a spouse can affect the decision of the court regarding conservatorship, possession, and access.

The assumption here is that behavior that makes a person a bad spouse doesn’t necessarily make them a bad parent. On top of that, Texas family law always starts from the perspective of trying to provide the best possible outcome for the children involved and protecting their best interests.

That being said, judges might not look kindly at spouses that start dating before a divorce is final– particularly if there are minor children in your family. The spouse that was cheated on could argue that person who is in a new relationship is disregarding the way their actions impact the children. Additionally, they could argue that they are acting irresponsibly in relation to their parental responsibilities.

For instance, let’s say that you start dating someone before your divorce is final and they spend the night in a home where your children also live. Your spouse could argue that this negatively impacts your kids and that your behavior is inappropriate.

Another example is if a cheating spouse exchanged inappropriate photographs with their lover on a device that was accessible by their children. A court could take this into consideration when deciding about issues of custody and visitation.

Your custody award could be impacted by this type of circumstance. Just so you know, child custody is known as conservatorship in Texas. How much time you are allowed to spend with your kids could be reduced if the judge believes your behavior is irresponsible or inappropriate in relation to your kids and impacts them negatively.

How Adultery Affects Alimony in a Texas Divorce

While Texas law doesn’t use the word “alimony,” there are several different types of spousal support that can emerge from a Texas divorce.

The first is spousal maintenance, which courts award in certain circumstances based on very specific guidelines. Texas is considered one of the most difficult states in which to receive court-ordered spousal support, and there are limits to how much money one spouse can be ordered to pay to the other as well as the duration of these payments.

The second is temporary spousal support, which is a temporary order made by courts that only last during the divorce proceedings (and sometimes for a brief period after the divorce is final.)

The third is contractual alimony. This isn’t a court order and instead is an agreement worked out between you and your spouse (and your lawyers if you have them.) This type of agreement is usually a part of the divorce settlement.

When it comes to spousal maintenance, courts will take a look at the behavior and actions of both spouses in the marriage as a part of their decision. If one spouse committed adultery, the court might determine that they shouldn’t receive spousal maintenance even if they fit the requirements for this type of support under Texas law.

Contractual alimony, on the other hand, isn’t decided by a judge and instead results from an agreement between both parties. However, a spouse that is fighting for alimony payments that also committed adultery isn’t in a great bargaining position.

How Adultery Affects Property Distribution in Texas

Texas is a community property state that will split your property according to a division that is thought to be “just and right.” This means that the norm isn’t necessarily to split marital property precisely 50/50.

If you are able to prove that your spouse cheated on you during your marriage, you have the right to ask the court to award you a disproportionate amount of the property you and your spouse share. On the other hand, if the court is convinced by your spouse that you committed adultery, the shared property could end up getting split in a way that doesn’t favor you.

If either you or your spouse committed adultery, you shouldn’t assume that the property division will necessarily lean heavily in favor of the wronged spouse. There are a lot of different factors that can influence how adultery impacts property division, including:

  • The exact circumstances of your case
  • The use of marital resources in the course of an affair by the adulterous spouse
  • The judge that is assigned to your case

If it is found that a spouse was using marital funds as a part of their adulterous behavior, then adultery can particularly impact the division of marital property. For example, a spouse might use shared funds to pay for gifts, dinners, or hotel rooms as a part of their affair.

A court can order the adulterous spouse to pay back any of the resources that they spent on the affair before the divorce was final, even if the community property division isn’t affected by the acts of adultery.

Judges tend to have a lot of discretion when it comes to this particular matter. This means the outcome you can expect isn’t set in stone. That being said, adultery isn’t something that reflects well upon a party in a divorce proceeding.

Of course, this is only applicable if your case goes all the way to trial. If you are able to settle your case during mediation or otherwise before the case goes to trial, the offending spouse isn’t in a great position when it comes to negotiating power.

FAQ About Adultery in a Texas Divorce

There are likely a lot of questions running through your head if you are dealing with both the realization of adultery in your marriage and the notion that you're getting divorced. Let's look at some of the frequently asked questions about adultery and divorce in Texas that haven't already been covered in this article.

What If the Adultery Occurred After We Separated?

The state of Texas doesn’t recognize legal separation the way that some other U.S. states do. No matter how separated you and your spouse are in practice, you are technically married until the final divorce decree is issued by a judge.

This means that Texas courts will consider acts of sexual intercourse with parties outside the marriage to be adultery, even if you and your spouse have agreed to live separately and end your relationship. For this reason, it is important to wait to start dating until your divorce is final so it doesn’t have a negative impact on the outcome you receive.

Is Adultery a Crime in Texas?

It isn’t illegal to commit adultery in Texas. There are 21 states in the U.S. where adultery is technically a misdemeanor offense, but Texas isn't one of them.

That being said, any type of marital misconduct, adultery included, can be considered by Texas courts when deciding about property division and spousal support.

Do You Have to Prove Adultery in Divorce Proceedings?

If you are filing for divorce on the ground of adultery, you will need to prove the adulterous behavior to the court. Of course, this can be very difficult because infidelity is secretive in nature. While you can use either circumstantial or direct evidence to prove that your spouse cheated, the proof does need to be clear and positive.

This means that it won’t be enough to provide evidence of innuendo or suggestion. You will need photos, texts, emails, social media messages, bank statements, or other evidence to show the court that a relationship exists (or once existed) between your spouse and another party.

Does Adultery Only Matter in Fault-Based Divorces?

Even if your spouse committed adultery, you might choose to file for a no-fault divorce. The reason for this is that fault-based divorces are inherently more complicated, more expensive, and more time-consuming. As you might imagine, this can also make them a lot more stressful to deal with.

When you file for a fault-based divorce, you are claiming that the other party is at fault for the marriage breaking up. You will then have to present evidence to prove that your spouse committed adultery.

If you file for a no-fault divorce, on the other hand, you don't have to prove that your spouse is at fault in any way. Instead, the two of you can move forward in the process without fighting over who is to blame.

In some instances, adultery can still impact the decisions of the court in a no-fault case. For example, a judge will take into account the marital misconduct of either spouse when determining whether spousal support payments will be ordered.

Can I Start Dating While Divorce Is Pending?

You are free to do what you want, but it can impact your case and outcome negatively. It is generally advised to wait to start dating until your divorce has been finalized. Since Texas doesn’t recognize legal separation, you are considered married until the final divorce decree has been issued.

Realizing that you probably shouldn't date before your divorce is final can be incredibly frustrating. After all, moving on with your life is a necessary part of dealing with divorce. However, starting a new relationship could jeopardize your ability to receive an outcome you are happy with during your divorce.

You can learn more about dating before divorce is final in Texas here.

Are You Getting Divorced in Texas?

The decision to end your marriage is never an easy one. If adultery is involved in your marriage, it can make an incredibly difficult situation even harder to bear.

Understanding how adultery impacts the divorce process is essential regardless of whether you are the offending spouse or not.

If you are going to file for a divorce on the grounds of adultery, you will most likely want to enlist the help of a lawyer. Divorce is complicated enough as it is when you aren't filing on fault-based grounds, and an experienced divorce attorney will be able to help you determine whether you have sufficient proof regarding your spouse's affair.

No matter where you are in the divorce process, learning as much as you can about Texas divorce and family law can make a big difference in your stress and comfort levels with the process. After all, we are often most afraid of what we don't understand. When you familiarize yourself with what to expect in divorce, it can take a lot of weight off of your shoulders.

If you're getting divorced in Texas, be sure to check out our library of resources at TexasDivorceLaws.org.

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Written By:
Sophia Merton
Sophia received her BA from Vassar College. She is a researcher and writer that aims to help make the complexities of the legal system understandable to the layperson. Believing that people can be empowered by understanding their rights and responsibilities under the law, Sophia aims to offer accurate and well-researched information in straightforward and easy-to-digest legal articles.

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