What Is Adultery?

Adultery is a term that dates back to the days of the Old Testament and is even listed as one of the Ten Commandments. But the legal understanding of adultery in Texas is a question that divorcing couples often wonder about and ask about their possible recourse.  So in the eyes of the state of Texas, what is adultery?

Adultery is defined as having sexual intercourse between a married person and another person who is not their spouse. The cause of action by one spouse against a third party for adultery (criminal conversation) is not allowed by law in Texas. This means that if you are married and a third party has sexual intercourse with your spouse, you don’t have a right of action against the third party as a criminal proceeding. Similarly, a right of action for alienation of affection is not authorized in Texas.

Despite the fact that the innocent spouse has no cause of action against a third party for adultery, a spouse can still file for divorce against their spouse that committed adultery. Adultery is a fault ground for divorce, and the court may grant the divorce in favor of one spouse if the other spouse has committed adultery [1]. But in today’s world, because adultery is present in almost every divorce, judges don’t get too excited about it unless there have been other bad behaviors involved.

A court can consider adultery and other matters, and, as a result, grant a disproportionate division of community property to the party who has not committed the adultery [2]. Adultery is not limited to actions committed before the parties separated in Texas [3] and may be established by circumstantial evidence [4]. In a divorce decree, the court shall order a division of the estate of the parties in a manner the court deems just and right, having due regard for the rights of each party and any children of the marriage [5].

The defenses of recrimination and adultery to a suit for divorce were abolished in 1997 [6]. This means that adultery is no longer a bar to granting a divorce, as the adulterous spouse cannot claim a defense based on the prosecuting spouse’s similar actions.

The Reality Check of Adultery in a Divorce

Adultery is present in almost every divorce today, so the crux of this question is that while adultery establishes grounds for a divorce, unless there is very bad behavior that is very public or has hurt the children, judges don’t usually punish the adultered by awarding them a significantly disproportionate (higher portion) division of the community property or in the time they are awarded to see their children.

While that may be difficult to accept, it is the reality of what it looks like once you enter into the divorce process. Some attorneys will tell potential clients who come in with allegations of their spouse’s adultery, “Yes, we will go get you your pound of flesh!” However, in my experience, which has been twenty plus years, in most cases if you are pursuing a claim of adultery without any other bad behavior, you are spending a lot of money without a great return on your investment: you are creating a lot of ill will and you are not going to get a bigger property division or prevent your spouse from spending time with the children.

If you would like any further help or consultation, please feel free to contact me at 940-323-1300.

[1] Tex. Fam. Code section 6.003[2] See Muff v. Muff, 615 S.W.2d 696, 698-99 (Tex. 1981)[3] In re Marriage of C.A.S & D.P.S.., 405 S.W.3d 373, 383 (Tex. App.—Dallas 2013, no pet.)[4] Newberry v. Newberry, 351 S.W.3d 552, 556 (Tex. App.—El Paso, no pet.)[5] Tex. Fam. Code section 7.001.[6] See Tex. Fam. Code section 6.008(a)
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