Updated August 11, 2022
Does Cheating Affect a Divorce Settlement?
If your spouse has entered into an affair outside of marriage, it is likely a painful jolt that could make you either consider—or move forward with—divorce proceedings.
It is not uncommon for spouses to wonder if infidelities such as this are illegal, and the simple answer is no, they are not illegal in the State of Texas. However, the fact that it is legal does not mean that infidelity will not affect the outcome of your divorce case.
While most divorces in the State of Texas are no-fault divorces, some are based on one spouse’s wrongdoing. One form of wrongdoing the courts take into consideration is adultery. However, many divorcing couples are confused about when a cheating spouse’s actions amount to adultery and constitute the foundation for a fault-based divorce.
If you're going through a divorce, it can be helpful for you to know the basics about Texas divorce laws regarding adultery and what happens in a divorce if you or your spouse commit adultery in Texas. Whatever your divorce concerns, an experienced McLennan County divorce attorney can help.
What Is Considered Adultery in Texas?
In Texas Family Code, adultery is a legal term used when a married person voluntarily has sexual intercourse with someone who is not his or her spouse.
Sexual acts that aren’t intercourse do not reach the level of legal adultery. This means that having a heated online relationship or exchanging explicit photos does not meet Texas’s legal definition of adultery, even if you consider it cheating.
If you have caught your spouse engaging in any of the following less-than-savory activities, it may make him or her a cheat, but it does not meet the legal requirement for adultery:
Sending sexually charged photos or texts to someone other than you
Kissing, groping, and/or petting someone other than you
Engaging in oral sex with someone other than you
In the eyes of Texas law, the bar is fairly high when it comes to the matter of adultery.
Adultery and Separation
If either you or your spouse has sexual intercourse with another person while you are married—whether you are living together or not—then yes, it is adultery.
Even if you and your divorcing spouse agree that you are separated, this does not negate the fact that a new relationship (engaged in during your separation) may be classified as adultery by the court.
The fact is, Texas doesn’t recognize legal separation (learn more about legal separation in Texas); therefore, you are married until you are divorced (or until your marriage is annulled).
This means that, if you begin a new relationship during the divorce process (even if you are living separately), it can be grounds for granting a divorce based on adultery.
Dating While Divorce Is Pending
If you are planning to file for divorce or have already filed your papers in court, you may be wondering, “Can I date during the divorce process in Texas?” While there is no law prohibiting you from dating while your divorce is pending, jumping back into the dating pool too soon may not be the best idea.
Many divorcing spouses are eager to start seeing new people before their divorce is final. Dating after filing for divorce can feel like a breath of fresh air for many divorcing men and women.
However, dating during your Texas divorce has the potential to negatively impact your divorce case because you could end up being accused of adultery even if you aren’t living with your spouse. Technically, you are still married to your spouse while your divorce case is pending.
To avoid the adverse and unintended consequences, it could be a good idea to wait until your divorce is final. However, whether or not it is safe to start dating while your divorce case is pending depends on how you personally define dating.
Keep in mind that Texas law defines adultery as voluntarily having sexual intercourse with another person. Going on dates without having sex, signing up on an online dating platform, or chatting and exchanging photos with people on Instagram and Facebook cannot be considered adultery.
After weighing all pros and cons, it’s up to you to decide. If you and your spouse agree on all terms of your divorce and are pursuing an uncontested divorce, it’s probably a good idea to wait until your divorce case is final before you start dating.
If your spouse finds out about your new relationship while your divorce case is ongoing, they may become more combative and hostile, making your divorce more complicated than it has to be.
You should consult with a McLennan County divorce attorney to determine how dating during a divorce could affect your case.
The Extent of Your Spouse’s Indiscretion
When your spouse has an affair within the confines of your marriage, it is a betrayal that is emotionally painful, and that should not be minimized. This being said, however, there are gradations involved that can range from a one-time thing to an ongoing, lasting relationship conducted in tandem with your marriage.
While you may be able to forgive a one-time slip, coming back from a betrayal of the magnitude at the other end of the spectrum may not be possible. The fact that it could be worse does not make a short-term affair any less reprehensible, but the court will take every relevant factor into consideration, including the following:
The children’s exposure to the affair
The extent of the affair
The role the affair played in the dissolution of your marriage
How Can I Know if My Spouse Is Cheating?
If you have a sense that your spouse may be having an affair, there is probably a reason that you have come to this conclusion. Healthy marriages hinge on open, honest communication, and if you find that this is no longer the case in your relationship, it is time to take a closer look.
The best course of action is to share your concerns with your spouse, and if he or she talks in circles or engages in other gaslighting techniques, you have a problem—whether this means an affair or something else.
Recognize the Signs of Infidelity
There are obvious signs other than a gut feeling that can signal your spouse's infidelity, including these behaviors:
Consistently spending time with people whom you don’t know
Not including you in his or her social calendar
Evading your questions about his or her comings and goings
Engaging in new spending patterns
Engaging in new scheduling patterns
Changing his or her appearance suddenly and without comment or explanation
Trusting your spouse is an important part of marriage. You are not usually on the lookout for outward signs of weaknesses in your marriage, so do not beat yourself up if the signs of infidelity sneak up on you without you recognizing them.
Infidelity Is a Betrayal of Your Trust
While trust plays a critical role in every healthy marriage, a spouse’s infidelity is a direct betrayal of that trust that can rock your marriage to its core.
While many people see infidelity as a symptom of a deeper problem, there are less cruel and more productive ways to address marital issues. (This fact is not news to anyone.) In other words, if your spouse engages in an affair outside your marriage, he or she is responsible for his or her behavior and the effects it has on your marriage.
Infidelity Does Not Necessarily Spell Divorce
While your spouse’s affair is certain to have emotional repercussions and to challenge the strength of your marital bonds, it does not have to mean the end of your marriage. Help is available in the form of marital counseling, pastoral counseling, and plain old hashing out your differences.
If you ultimately choose not to move past your spouse’s indiscretions, however, the next step is consulting with a dedicated McLennan County divorce attorney.
How Can Adultery Affect My Divorce?
You should not move forward with your divorce thinking that your ex’s affair is your golden ticket to obtaining all the divorce terms that you seek.
Instead, you will need to prepare for your case as diligently as you would if your spouse had not cheated—while recognizing that your spouse’s wrongdoing could move the needle in relation to the division of your marital property and other important divorce issues.
Division of Marital Property
Texas is a no-fault divorce state, which basically means that neither you nor your spouse needs to prove that your partner engaged in any wrongdoing in order to obtain a divorce. However, grounds of fault can play a role when it comes to the division of your marital community property, which is foundational to the divorce process.
Marital property refers to those assets you acquired during the course of your marriage—regardless of who made the purchase or whose name is attached. In Texas, your property is split according to a division that is considered "just and right" and is not divided exactly in half.
If you can prove that your spouse engaged in adultery while you were married, then you are entitled to request that you receive a disproportionate amount of the marital property. If the court finds you guilty of adultery, the marital property may be divided in a manner that favors your spouse, not you.
These outcomes are by no means a given, but they do happen. The following factors tend to play a pivotal role:
The judge you are assigned
The exact circumstances involved
The divorcing spouse’s use of marital resources in the course of his or her affair
Adultery can especially affect how your marital property is divided between you and your spouse if it is determined that marital funds were used in the commission of adulterous acts (paying for hotel rooms, expensive dinners, or gifts for a paramour, for example).
Even if adultery does not impact the award of community property, the court could order the offending spouse to reimburse any money spent on an extramarital affair before finalizing the divorce.
The judge assigned to your case has considerable discretion in the matter, but an affair is not something that is going to reflect well upon the offending spouse.
A spouse’s adulterous behavior will likely not affect the child custody arrangements that emanate from your divorce (unless there is a compelling correlation). This tendency follows the logic that being a bad spouse doesn’t make a person a bad parent.
That being said, judges may frown upon spouses who start dating before their divorce case is final, especially if the spouse has minor children. Your spouse may argue that you are acting irresponsibly or disregarding the impact of your new romantic relationship on the kids.
For example, if your new partner moves in or stays overnight in the house where you live with your minor children, your soon-to-be-ex-spouse could argue that your behavior is immoral or inappropriate.
This, as a result, could affect the custody award, which is known as conservatorship in Texas, and the amount of time you are allowed to spend with your children. The judge may take all of these factors into account when awarding custody and conservatorship rights during a divorce.
Alimony is a financial remedy the court can employ to help the spouse with fewer financial means find his or her financial footing post-divorce via (usually temporary) payments from the spouse with the financial ability to help.
Alimony is often predicated on income erosion—when one spouse allows his or her career to dwindle to support his or her spouse’s career or to stay home and raise the children. If alimony plays a role in your divorce, your spouse’s affair could affect both the duration and amount of your spousal maintenance payments.
While the fact of adultery can play a fairly significant role in your divorce, it cannot affect whether alimony will or will not be awarded.
An important note, however, is that—if alimony is a factor—adultery can affect the amount and duration of the payments. Further, if the eligible spouse is the one who committed adultery, it can negate his or her eligibility, regardless of their need for spousal support.
If your right to alimony is undecided, adultery can tip the balance. If your spouse was involved in an affair, it could enhance your right to alimony (especially if the affair led to your marriage’s downfall). Alternatively, if you are entitled to alimony but your own affair contributed to the dissolution of your marriage, it could void your eligibility.
Does Adultery Affect Contested and Uncontested Divorces?
In Texas, spouses can file for divorce on no-fault grounds or pursue a fault-based divorce. Adultery is listed as one of the grounds for a fault-based divorce under Texas law.
Texas has both no-fault and fault-based divorces, and while the vast majority of divorces are no-fault, some are predicated directly on the fault of one spouse. According to Texas Family Code § 6.003, when one spouse commits adultery, the courts may grant a divorce in favor of the spouse who was cheated on.
If you can successfully argue that your spouse’s affair is responsible for the failure of your marriage, it can support a divorce based on fault, which can significantly affect the terms of your divorce—specifically the division of your marital property (called community property in Texas) and alimony.
If you are seeking a no-fault divorce—the way the vast majority of divorcing couples do in the State of Texas—it does not mean that the fact of your divorcing spouse’s adultery cannot play a role. Adultery can still impact your divorce in many of the ways listed above.
However, if your spouse finds out that you started dating during divorce (or even before filing for divorce), your chances of obtaining an uncontested divorce may be slim.
Even if you and your spouse agree to end your marriage amicably, you do not know how your spouse would react if they knew that you began dating so soon. Dating during divorce could hurt your spouse’s feelings and turn your uncontested divorce into a contested one.
How Can I Prove My Spouse’s Adultery?
You will be required to prove the adultery in question before the court will allow your divorce to proceed on the basis of fault. Simply suspecting your spouse of having committed adultery will not cut it for the court—regardless of how correct you are on the matter.
When it comes to divorce and your spouse's adultery, you must be able to provide either direct evidence or circumstantial evidence that is clear and convincing, which is more robust than the "preponderance of the evidence" that usually holds in civil cases. Suggestion, gossip, and innuendo will not suffice.
You can prove that your spouse has been unfaithful by presenting these kinds of evidence:
Emails, texts, photos, and videos sent between your spouse and his or her presumed paramour
Direct messages from social media or other suspicious social media activity
Bank or credit card statements showing unexplained charges for hotels, dinners, or gifts that point to adulterous activity
Phone records with an inordinate number of phone calls (perhaps at odd hours) between your spouse and his or her presumed paramour
Snippets of phone conversations between your spouse and his or her presumed paramour that are overheard by you
In Texas, courts may consider evidence of unfaithfulness even if the affair began after the couple separated and started living apart.
When determining if the offense rises to the level of establishing fault in your divorce, the judge in your case will consider the overall amount and breadth of the evidence you have regarding your spouse’s adultery. (Read more about evidence in contested divorces.)
How Can a Skilled McLennan County Divorce Lawyer Help Me?
Divorce is extremely difficult, and adultery can make it even more painful. If your divorcing spouse committed adultery, then it could affect the outcome of your case.
Attorney Brett Pritchard at The Law Office of Brett H. Pritchard—proudly serving McLennan County, Texas—understands how difficult divorce is for you and is committed to helping you weather the storm and emerge on the other side with divorce terms that support your rights and favor your future.
We are on your side, so please do not wait to contact us online or call us at (254) 781-4222 for a FREE consultation. We've helped thousands. Military discounts are available!