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How Does Adultery Affect Divorce in Texas?

| Chris Schmiedeke |

Key Takeaways:

  • Adultery can be grounds for divorce in Texas.
  • If your partner committed adultery, it could affect property division during the divorce.
  • While Texas family law does not always consider divorce, such as with child custody, it could be one of many factors the judge uses in their rulings.
  • A Texas family law attorney can help you navigate a divorce case that involves a cheating spouse.

Adultery in a marriage is never an easy discovery. Trust and stability are fundamentally altered in a marriage and could justifiably lead to the end of it altogether. As if that was not enough already, the legal situation can get complicated when adultery is involved in a Texas divorce. While the emotional impact is significant, it is important to consider the practical considerations for an equitable divorce settlement when adultery is involved.

To get the most out of your Texas divorce, you need to think clearly and strategically, even when the emotional response to adultery threatens to overshadow the entire endeavor. The complexity of divorce law is hard to deal with at the best of times, so having a Texas divorce lawyer by your side can make the process much easier. Take a look at how a divorce attorney can help your case, especially if the divorce is not amicable.

How Does Texas Treat Adultery?

Adultery is defined in the Texas Family Code 6.003 as the voluntary sexual intercourse of a married person with someone other than their spouse. What constitutes cheating in any given marriage is not as important as how the state law specifically defines adultery if you expect it to be relevant to any divorce proceedings.

Proving Adultery in Texas

To prove adultery in a Texas court, you must demonstrate that the infidelity occurred during the marriage. This includes any point in time in which your spouse was separated but still legally married. You can prove adultery by both direct and circumstantial evidence. This includes emails, text messages, social media posts, and more direct evidence like photos and video footage.

How Adultery Can Affect Your Divorce

When judges determine what qualifies as a just and right division of community property or marital assets in your divorce, they consider a variety of factors. Adultery is just one of many factors that could impact their decision.

Division of Property

While the impact of adultery is fairly limited in most cases, it is possible for a judge to award a larger share of the community marital property to one partner if their spouse was demonstrably unfaithful. This can additionally include reimbursement for wasted community assets. For example, a cheating spouse may use money in the community marital estate to facilitate their affair to pay for hotel rooms, dinners, credit cards, etc. A court may rule that the unfaithful spouse must reimburse the innocent spouse for the use of those funds.


Alimony or spousal support is only allowed in particular circumstances in the state of Texas. Most of the time, divorcees do not have to worry about spousal support. Because of this, adultery does not really play a role in alimony awards whatsoever. While a judge may consider adultery as a contributing factor, alimony is dependent on the spouse requesting support being unable to provide for their own minimum reasonable needs. Additionally, a spouse claiming alimony must meet at least one of the following criteria.

  • They or their children were victims of domestic violence.
  • The marriage lasted at least ten years, and the requesting spouse could not provide for themselves even with effort.
  • The requesting spouse has a mental or physical condition that prevents them from earning enough for their own minimum reasonable needs.
  • The requesting spouse has custody of a child with a mental or physical disability that needs substantial care.

Will Adultery Affect Child Custody in Texas?

Father hugging his daughter while the mother looks upset

Texas judges consider a variety of factors when determining child custody and child support, but adultery tends not to play much of a role. Ultimately, family court rules on custody decisions based on what is in the best interests of the child above all else. From a legal perspective, someone participating in an extramarital affair does not prevent them from being a good parent and having conservatorship over their child. A judge would consider the following factors, though this list is not exhaustive, to determine a child’s best interests and overall well-being.

  • The physical and emotional needs of the child.
  • The stability of the child’s residence.
  • How old the child is alongside their mental development.
  • How well each parent will be able to meet the child’s needs.
  • The nature of the child’s relationship with each parent.
  • How open each parent is to co-parenting.
  • Whether there is a history of abuse or domestic violence.
  • The child’s preference (if they are at least 12 years of age).

Why Clients Partner With the Law Offices of Chris Schmiedeke, P.C.

Dealing with the emotional turmoil of adultery alongside the legal complexity of divorce is tough to handle on your own, but you do not have to be alone with help from the Law Offices of Chris Schmiedeke, P.C. At our Dallas law firm, we strive to make the divorce petition process as easy as possible while still offering custom solutions for your unique situation in a communicative attorney-client relationship. Our law firm has successfully proven adultery before the Court in divorce cases, and we can do the same for you.

Take a look at what some of our previous clients have said about our legal advice and services.


“Chris and his team are amazing. They were quick and responsive to my emails and questions. Their billing process is very transparent. They were very understanding and diligent in handling my complex case.” — Jas V

“The team was amazing. They all were very helpful, patient, and understanding of my situation. Even the front desk was so helpful and informative when I had questions. They got everything done as smoothly and quickly as could be. I would definitely use them if needed in the future. Thank you from the bottom of my heart.” — Patrick S.

“Lisa, Amanda, and Vanessa were very pleasant to work with. They kept right on my case and let me know step-by-step exactly everything that was going on. The communication was outstanding, and I highly recommend this law firm to others.” — Sarah M.

Frequently Asked Questions About Divorce

What Are the Main Causes of Divorce in Texas?

One of the main causes of divorce in Texas is infidelity, though that is followed closely by incompatibility. However, it is important to remember that marriages are complex relationships, and there is often no singular cause that leads to divorce. When people consider what caused the breakdown of the marriage, they typically reference what the last straw was rather than something that was the sole factor. Here are some other reasons for divorce in Texas.

  • Poor communication
  • Financial troubles
  • Drug and alcohol abuse
  • Marital violence and domestic abuse
  • Lack of intimacy
  • Consistent arguing and disagreements
  • Different expectations of partners
  • Health problems
  • Significant cultural differences

What Are the Grounds For Divorce in Texas?

In Texas, there are seven grounds for divorce, including both fault and no-fault grounds. In order to get divorced, your marriage must meet at least one of the following grounds for divorce.

No-Fault Grounds

  • Irreconcilable Differences: When a couple has irreconcilable differences, it means that there is such a significant conflict of personalities that there is little to no hope of reconciliation. This is the most common ground for a no-fault divorce.
  • Living Separately: If a married couple has lived separately for a period of three years or more, that alone can be grounds for a divorce as a precursor to legal separation.
  • Institutionalization: If one spouse becomes mentally incompetent or is confined to a mental hospital, that can qualify as grounds for divorce. Keep in mind, however, that this only applies if they have been confined for a period of at least three years and are not likely to improve.

Fault Grounds

  • Cruelty: Any treatment of a spouse that makes living with them insupportable can be considered cruelty. Keep in mind, however, that cruelty overall is a subjective term, and the exact definition of it will vary on a case-by-case basis. For example, desecrating religious icons could be deeply cruel to a religious spouse while having virtually no effect on a non-religious spouse. As a disclaimer, you can still use cruelty as a grounds for divorce even if you attempted to reconcile after the act(s) of cruelty.
  • Adultery: Adultery qualifies as grounds for divorce in Texas. Despite this, however, it may not affect the divorce proceedings all that much when it comes to custody agreements. You will need to demonstrate adultery occurred to use this as grounds for divorce, and this can be done through both direct and circumstantial evidence.
  • Felony Conviction: If a spouse is convicted of a felony and spends at least one year in prison, that alone can be used as grounds for divorce. There is a notable exception to this, however, as a felony conviction cannot be used as grounds for divorce if the felon’s case was dependent on their spouse’s testimony. This circumstance does not prevent divorce overall, but it does prevent divorce solely on the grounds of felony conviction.
  • Abandonment: Abandonment is an instance in which one spouse voluntarily leaves the other with the explicit intent to abandon them. Intent, in this case, simply means that the spouse who moves out has no intention or desire to return. Additionally, the abandonment must last for at least a period of one year.

Is Texas a Community Property State?

Yes, Texas is a community property state in the sense that all property obtained through the duration of the marriage is considered to be jointly owned by both spouses. When it comes to divorce, however, Texas utilizes the just and right division standard, which strives for an equitable distribution of the community estate rather than splitting everything 50-50 by default.

What Forms of Cheating is Considered Adultery in Texas?

According to Texas state law, adultery is specifically defined as the sexual intercourse of a married person with someone who is not their spouse. While other behaviors may qualify as cheating in one’s personal relationship, adultery is legally defined as intercourse.

Is Adultery Illegal in Texas?

No, adultery is not illegal in Texas. While it is not a criminal act, it can play a role in the divorce proceedings and how the judge makes decisions.

Looking For a Loyal Partner to Work Through Your Divorce With? We Are Here.

At the Law Offices of Chris Schmiedeke P.C., we are happy to work with you on your divorce case to protect your rights and work towards an equitable distribution of assets. To get started with the divorce process, give us a call at 214-989-7375 or fill out our online contact form.

Chris Schmiedeke


I was born in Dallas and spent the majority of my life here. I moved to Denver in the middle of the first grade and moved back to Plano in the middle of the eleventh grade. I graduated from Plano Senior High in 1984 and then attended Richland College and the University of North Texas where a received a Bachelor of Business Administration. From there I attended the Texas Tech University School of Law and was licensed to practice law in May of 1993. 

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