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Is Adultery a Crime or Illegal in the State of Texas?

Sophia Merton
December 6, 2023

If your marriage is ending because of infidelity in your marriage, there are probably a lot of questions swimming around your head at the moment. One thing that you might be wondering is: is adultery a crime in Texas?

The short answer is: no.

  • At the same time, this doesn’t mean that adultery can’t impact the outcome of your divorce proceeding.

Though this might seem strange, the reality is that infidelity isn’t a criminal offense in Texas. However, it can be taken into account in a civil case such as divorce.

Let’s take a closer look at what you need to know about adultery and divorce in Texas to help you get a better sense of what you can expect from the divorce process.

Defining Adultery in Texas

Before we get into the legality of adultery in Texas, let’s first make sure we’re clear on what exactly adultery is under Texas law. Culturally, people might think of things like having an emotional affair as a form of adultery, but the state of Texas very specifically designates what constitutes adultery.

man and woman having an affair in the state of texas

An individual in Texas commits adultery if they have sexual intercourse with a person who isn’t their spouse while married. Texas law sees adultery as occurring when physical, sexual intercourse has taken place between a married person and someone who isn’t their husband or wife, rather than applying broader definitions of cheating.

How can you know if your spouse is really cheating or if you're just being paranoid? Check out our list of signs your spouse is having an affair.

Is Adultery a Crime in Texas?

No, adultery isn’t a crime in Texas. This means that someone who cheats on their spouse won’t be locked away or face criminal charges for their behavior.

At the same time, this doesn’t mean that adultery can’t have an impact on the outcomes of civil proceedings, such as a divorce. Essentially, just because a cheater won’t have handcuffs slapped on them for straying from the marital bed, it doesn’t mean they will get off scot-free without facing legal challenges.

man and woman having affair texas divorce

In Texas, a person who is seeking a divorce will need to select a legally accepted reason that they are choosing to end their marriage. These are known as “grounds.” Individuals can either file for divorce based on no-fault grounds or on fault-based grounds.

  • One of the fault-based grounds that is considered acceptable in Texas is adultery.

It’s worth noting that the courts in Texas have found that adultery can be used as the grounds for divorce even when the infidelity occurred after the two spouses had separated from one another.

Is Adultery a Crime Anywhere in the U.S.?

There are actually 20 states in the U.S. where adultery is defined as a crime. In most places, it’s treated as a misdemeanor. However, there are several states where infidelity is actually a felony.

man and woman silhouette on beach having an affair in texas divorce

Adultery is a misdemeanor in the following U.S. states:

  1. Alabama
  2. Arizona
  3. Florida
  4. Georgia
  5. Illinois
  6. Kansas
  7. Maryland
  8. Minnesota
  9. Mississippi
  10. New York
  11. North Carolina
  12. North Dakota
  13. Rhode Island
  14. South Carolina
  15. Utah
  16. Virginia

In these four states, adultery is considered a felony:

  1. Idaho
  2. Michigan
  3. Oklahoma
  4. Wisconsin

Adultery was a crime in Massachusetts until 2018, up until which point it was considered a felony offense. This meant that, theoretically, at least, cheaters could be put in a state prison for up to three years, in jail for up to two years, and also be ordered to pay a fine of up to five hundred dollars.

How Adultery Impacts the Divorce Process in Texas

If your spouse has committed adultery and you’re filing for divorce, there’s a good chance you’re wondering how this will affect the outcome when it comes to things like property division, alimony, and child custody.

man and woman on date having an affair in texas

One might assume that the courts will automatically be harsh toward anyone who has broken their marriage contract. However, it’s important to understand that infidelity may or may not affect important questions like how property is split up.

You have the option, when you live in Texas, to file for divorce on the grounds of adultery. This means, though, that the pressure is on you (and your attorney) to prove the claim that you’re making against your spouse. The judge might consider the behavior of your spouse when splitting property and making decisions about spousal support, but not necessarily.

Property Division

Texas is one of a handful of community property states in the U.S. This doesn’t necessarily mean, however, that the estate will be split down the middle. The rule of thumb is that courts have to divide assets and debts in a way that is deemed “just and right.”

A spouse’s fault in splitting up a marriage– including adultery– can be taken into account when a fair but unequal division is being determined. Usually, though, other circumstances need to be present for the estate to be divided unequally. It’s also more likely that you will be awarded more in this type of situation if a lot of marital money was used toward your spouse’s affair.

Spousal Support

Texas really only court orders spousal maintenance in a few specific circumstances. If you are hoping that you’ll be awarded substantial alimony by the court because of your spouse’s infidelity, you might be disappointed to learn that this might not be the case.

There are strict eligibility requirements for receiving spousal maintenance in Texas. Spousal support, on the other hand, can be agreed to within a divorce settlement agreement in a way that allows for a lot more leeway in terms of the amount of money you can receive and for how long.

Child Custody and Support

Texas, just like every other state in the U.S., must make decisions about child custody based on what is in the best interest of the child. This typically means that adultery isn’t going to have an impact on the court’s ruling regarding parenting time and the primary residence of the child.

  • The idea here is that an individual isn’t necessarily a bad parent just because they had an affair. Essentially, being a bad spouse doesn’t inherently make someone a bad mother or father.
  • That being said, a judge might consider infidelity in a marriage in regard to child custody if the child’s well-being was endangered as a part of the affair.

When it comes to child support, there is a formula used by the state of Texas to determine how much support is required.

This is based on a number of factors, including:

  • The income of the parent that will be asked to pay child support
  • How many children will be supported by child support payments
  • Other expenses

Child support payments are intended for the support of the child’s needs, not for the parents, and certainly not as a way to punish an individual that led to the dissolution of a marriage.

What to Know About Dating Before Your Divorce Is Finalized

Let's say that you and your spouse have decided to go separate ways. One or both of you move out of the house, and the two of you start building your lives back up on your own.

At the same time, your divorce hasn't been finalized yet. There isn't such thing as legal separation in Texas, so you are still very much legally married in the eyes of the Texas courts.

You might assume that starting to date new people would be fine in this circumstance, but it's best to wait until the Final Divorce Decree is signed by a judge. Texas courts have found that a spouse can file for divorce on the fault-based grounds of adultery even if the affair didn't begin until after the couple separated.

This means that dating while your divorce is ongoing, even if you and your spouse are living separately, could impact the outcome of your divorce. Considering how impactful things like property division and spousal support can be on your post-divorce life, the safest thing to do is wait until the divorce is final to start dating.

Divorce in Texas: Knowledge Is Power

Adultery might not be a crime in the state of Texas, but that doesn’t mean it can’t impact how everything pans out in your divorce.

If you or your spouse decides to file for divorce on the fault-based grounds of adultery, it’s possible that there could be an unequal division of property. Furthermore, it could potentially affect court-ordered spousal maintenance. Since child custody and child support are based on the needs of the children, adultery won't impact these rulings unless the infidelity has compromised the child's well-being.

At the same time, you shouldn’t necessarily assume that the court will rule in your favor in this regard. Judges are expected to create “fair and just” rulings in divorces. Adultery, on its own, may not be enough to award you more than half of the marital property. Additionally, spousal maintenance is only awarded in a few select circumstances in Texas.

If you’re getting divorced, one of the best things you can do is work to gain a deeper understanding of the process. The more you know, the better prepared you can be!

Are you searching for more resources to help you through your Texas divorce? If so, 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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