Does Adultery Matter in a Texas Divorce?

One of the most emotional issues in many divorces is the discovery that a spouse has been unfaithful. Clients often ask whether proving an affair will determine who “wins” the divorce or whether the cheating spouse will automatically lose custody of the children or most of the marital property.

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Texas law does not treat adultery that way.
 

Marital infidelity can be relevant in a divorce, but its legal significance is often different from what many people expect. While adultery may influence the division of property in some cases, it does not automatically result in one spouse receiving a larger share of the marital estate, nor does it ordinarily determine child custody.
 

Adultery Is a Fault Ground for Divorce

Texas recognizes both no-fault and fault-based divorces.
 

Under Tex. Fam. Code § 6.003, a court may grant a divorce on the ground of adultery if the evidence establishes that one spouse engaged in voluntary sexual intercourse with someone other than his or her spouse during the marriage.
 

Many divorces, however, proceed on the no-fault ground of insupportability, even when allegations of adultery exist. Whether adultery should be formally pleaded as a fault ground depends upon the facts of the individual case and the overall litigation strategy.
 

Can Adultery Affect the Division of Property?

Yes.
 

Texas courts divide the community estate in a manner the court considers “just and right.” See Tex. Fam. Code § 7.001.
 

In determining what constitutes a just and right division, courts may consider numerous equitable factors, including fault in the breakup of the marriage. The Texas Supreme Court recognized in Murff v. Murff, 615 S.W.2d 696 (Tex. 1981) that fault in the dissolution of the marriage is one factor a trial court may consider when making a disproportionate division of the community estate.
 

Accordingly, evidence of adultery may support an award of a greater share of the community estate to the innocent spouse.
 

There Is No Formula for How Much an Affair Is Worth

Many clients understandably want to know how much additional property they will receive if adultery is proven.
 

Texas law provides no mathematical formula.
 

A court has broad discretion in determining what constitutes a just and right division, and judges reach different conclusions based upon the facts presented in each case. Some cases involve extensive evidence of marital misconduct and substantial financial consequences, while others involve very little emphasis on the affair itself.
 

The existence of adultery does not automatically result in a particular percentage division of the marital estate.
 

The Court Looks at the Entire Marriage

Although adultery may be relevant, judges rarely evaluate it in isolation.
 

The court often wants to understand the broader circumstances surrounding the marriage and its breakdown. Questions frequently arise concerning the duration of the marriage, the parties’ financial circumstances, their respective earning capacities, their contributions to the marriage, separate property, the existence of children, allegations of family violence, financial misconduct, and other factors recognized by Texas law.
 

In many cases, there are multiple reasons why a marriage ended. The court evaluates the totality of the evidence rather than focusing exclusively on a single event.
 

Spending Community Funds on an Affair May Become More Significant

In some cases, the financial consequences of an affair become more important than the affair itself.
 

If community funds were used to purchase gifts, vacations, hotel rooms, rent, vehicles, jewelry, or other benefits for a third party, the court may consider whether those expenditures constitute fraud on the community or the wasting of marital assets.
 

Bank statements, credit card records, hotel receipts, airline records, electronic payment histories, and other financial documents often become important evidence when these claims are asserted.
 

These financial issues are frequently more significant than simply proving that an affair occurred.
 

Judges Often View Adultery Differently Than Clients Do

For many clients, discovering an affair is one of the most painful events of the marriage. Understandably, it often becomes the defining issue from an emotional perspective.
 

Judges, however, are required to decide cases according to the law.
 

Family court judges hear allegations of adultery on a regular basis. While marital misconduct may certainly be relevant, judges generally focus on resolving the legal issues before the court, including property division, conservatorship, child support, and the best interests of the children.
 

Particularly when children are involved, courts often place greater emphasis on developing workable parenting arrangements than assigning moral blame for the breakdown of the marriage.
 

Does Adultery Affect Child Custody?

In most cases, no.
 

Texas courts decide conservatorship and possession based upon the best interest of the child, not whether one parent was faithful during the marriage.
 

An affair, standing alone, does not make a parent unfit, nor does it automatically affect conservatorship rights or possession schedules.
 

The court is primarily concerned with whether the child is being raised in a safe, stable, and healthy environment. Issues such as family violence, substance abuse, neglect, abuse, criminal conduct, instability, or behavior affecting the child’s welfare generally receive far greater attention than evidence of marital infidelity.
 

If an extramarital relationship directly exposes the child to unsafe circumstances or otherwise affects the child’s well-being, those facts may become relevant. Otherwise, infidelity alone is ordinarily not a determining factor in custody litigation.
 

Proving Adultery Requires Evidence

Like every issue in a divorce, allegations of adultery must be supported by admissible evidence.
 

Depending upon the facts of the case, evidence may include text messages, emails, photographs, financial records, hotel receipts, travel records, social media communications, witness testimony, admissions made by a party-opponent, or other relevant evidence.
 

Simply believing that a spouse has been unfaithful is not enough. The court bases its decisions on evidence that is properly presented under the Texas Rules of Evidence.
 

Fergus & Tomanka Represents Clients in Fault-Based Divorce Cases

Marital infidelity can affect property division, litigation strategy, and settlement negotiations, but every case depends upon its unique facts. Understanding when adultery is legally significant—and when it is not—is an important part of developing an effective strategy for your divorce.
 

At Fergus & Tomanka, we represent clients throughout Central Texas in both fault-based and no-fault divorces involving adultery, fraud on the community, complex property division, business ownership, retirement benefits, and contested child custody matters. We help our clients evaluate the evidence, understand the applicable law, and focus on the issues that will have the greatest impact on the outcome of their case.