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What to Do if Wife or Husband is Having an Affair in Texas

Sophia Merton
November 16, 2023

Is your wife or husband having an affair in Texas? If so, you might be wondering what the heck to do next.

There are few things as disturbing and painful as realizing that your significant other has been unfaithful. If you choose to file for divorce, you’ll want to understand how infidelity can impact the outcome of your divorce.

In this article, we’ll take a close look at what you should do if your spouse is having an affair and what to expect from your divorce.

Will Adultery Impact My Texas Divorce?

When you get divorced in Texas (and all other U.S. states, for that matter), you have to state the grounds for the divorce. You can understand “ground” to mean a legally accepted reason for dissolving the marriage.

wife cheating on husband in texas divorce

In Texas, there are both fault-based and no-fault grounds for divorce. One of the fault-based grounds you can claim is adultery. This is an acceptable ground for divorce whether the adultery occurred before or after the two parties separated.

How Is Adultery Defined in Texas?

According to the courts in Texas, an individual has committed adultery if they voluntarily engage in sexual intercourse with someone other than their spouse. Individuals are even able to use adultery as the grounds for divorce if the spouses were already separated when the affair occurred.

This is one of the reasons it’s probably not a good idea to start dating before your divorce is finalized, even if you and your spouse aren’t living together.

What Should I Do If My Spouse Is Having an Affair in Texas?

Realizing that your spouse is cheating on you is one of the most difficult situations anyone could find themselves in. Of course, it’s important to take time to process your emotions and seek support from friends, family members, and potentially a professional therapist or counselor.

husband cheating on wife in texas divorce

At the end of the day, everyone is going to handle a situation like this differently. You might find that it is possible to save your marriage through open and honest communication. On the other hand, you might discover that your spouse has been unfaithful for some time, and the breach of trust is more than you can deal with.

When you realize that your spouse has been cheating, it can be tempting to gather as much evidence as possible both because you want to know what happened personally but also in preparation for a divorce. It’s absolutely essential, though, that you don’t accidentally cross the line of what is legal in your attempts to prove the affair.

One of the best things you can do when you learn your spouse has been unfaithful is to learn as much as you can about the divorce process and seek professional (both legal and emotional) guidance.

The Ways an Affair Can Influence Your Divorce in Texas

If your spouse had an affair and you’re filing for divorce, it’s worth understanding the ways it can impact the major issues in any marriage dissolution. Let’s take a look at how adultery influences property division, spousal maintenance, and child custody and support.

Does an Affair Impact Spousal Maintenance?

In Texas, “alimony” is referred to as “spousal maintenance.” Spousal maintenance and support are only given out in limited situations.

red neon heart symbolizing affair in texas divorce

Judges are only authorized to grant spousal maintenance when the spouse seeking support lacks sufficient property to meet their "minimum reasonable needs," provided that one of the following conditions is met:

  1. The supporting spouse has a recent conviction for domestic violence against the other spouse or their children.
  2. The marriage lasts a minimum of ten years, and the requesting spouse is incapable of earning enough to cover their minimum reasonable needs, even after demonstrating significant efforts to do so or trying to acquire the necessary skills.
  3. The requesting spouse is unable to generate income sufficient to meet these needs due to a debilitating physical or mental disability or because a child in their custody has such a disability, necessitating substantial care or supervision.

Judges will only deliberate how much maintenance to award a spouse if they manage to meet these rather strict requirements. There are many factors that a judge has to take into consideration when determining how much maintenance to award, which can include either spouse having an affair.

So, basically, adultery could potentially have an impact on the amount and duration of spousal maintenance in Texas if you file for a fault-based divorce on the grounds of adultery and successfully prove that claim. At the same time, the requirements are so strict for receiving maintenance in the first place that many couples won’t be impacted by this. Furthermore, adultery is only one of the factors considered if one of you is eligible for spousal maintenance.

It’s worth noting that in addition to spousal maintenance in Texas, there is also a distinct term known as spousal support. This is a voluntary rather than court-ordered agreement that commonly appears in divorce settlements.

Will an Affair Influence Property Division?

Texas is one of the few states in the U.S. that is a community property state rather than an equitable distribution state. That being said, your assets and debts won’t necessarily be split evenly down the middle. The rule of thumb is that judges are required to divide property in a way that is considered “just and right.”

husband cheating on wife in texas divorce

A judge can consider a spouse’s fault in the dissolution of the marriage when dividing property unequally in a fault-based divorce. This means that adultery can be considered a factor when determining how to split up your property.

For example, it’s possible that a judge could give a smaller portion of a couple’s estate than would typically be considered fair if it were proven that they had an affair. Usually, though, there need to be other circumstances in addition to adultery to justify unequal property division.

Does Having an Affair in Texas Ever Impact Child Custody or Support?

The children’s best interests are the primary concern when determining child custody or support in a divorce. This is the case both in Texas and in all U.S. states.

In most cases, the adultery committed by a parent won’t impact child custody because it isn’t a given that the individual isn’t a good parent, even if they were unfaithful in their marriage.

  • However, it is possible that a judge might take this information into account if they find that the affair endangered the well-being of the child.

As far as child support goes, there is a formula that is based on the income of the paying parent and the number of kids that require support. These child support guidelines are meant to ensure the child’s needs are met, so an affair or other negative behavior on the part of the parents won’t impact the outcome.

Adultery Claims in a Divorce in Texas

Filing for a fault-based divorce is often more expensive than filing for a no-fault divorce. Furthermore, it also tends to be a lengthier process. For this reason, many individuals choose to get a no-fault divorce even when they believe that their spouse’s behavior led to the marriage ending.

If you are going to file for divorce on the grounds of adultery, it’s important to understand that you will have to prove that claim. Circumstantial evidence can be used to prove your spouse had an affair, but it needs to be “clear and positive” rather than a simple suggestion or innuendo.

For example, the following could be used to prove adultery in a Texas divorce:

  • Text messages, emails, or testimony of your spouse admitting to an affair
  • Testimony that your spouse was residing with an intimate partner before the divorce was finalized but after you began living separately
  • Back and forth text messages where your accusations of adultery weren’t denied by your spouse, as Texas courts can consider this an admission of guilt

On the other end of things, if your spouse files for a fault-based divorce due to an affair they believe you’re having, you’ll have the opportunity to defend yourself from the accusation of adultery. This might mean denying the claims, or it could mean proving that your spouse condoned your behavior.

Divorce and Adultery in Texas: Final Thoughts

If your wife or husband is having an affair, the most important thing is to make sure that you’re taking care of yourself and your children both emotionally and physically. If you do choose to file for divorce, you’ll need to determine whether it’s worth the time and money to file for a fault-based divorce on the grounds of adultery. Working with a legal professional can help you understand the pros and cons of this option.

If you do choose to go this route, you’ll need to collect evidence that will help prove that your spouse actually committed adultery. At the same time, it’s essential that you don’t gather this information through illegal means. This means you can’t break into their cell phone or hack into their email, listen into their phone conversations, or otherwise break the law.

Ultimately, the best thing you can do when you realize your spouse is having an affair and you want a divorce is to learn as much as possible about the divorce process and how adultery can impact it. For more resources to help you in this capacity, make sure you check out our Texas Divorce Laws blog!

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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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