Sarah Rose

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Adultery, Affairs, and Divorce

Posted by on in Divorce
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In Texas, and across the country, adultery remains one of the main causes of divorce. The Texas legislature has narrowly defined adultery and even more narrowly defined the application of adultery in a divorce proceeding.

Texas Courts have defined adultery as “voluntary sexual intercourse of a married person with one not the spouse.” In re Marriage of C.A.S. 405 S.W.3d 373, 383. This means that there must be sexual contact, even just one time. This also means that “emotional affairs” do not rise to the level of adultery as a ground for divorce. Keep in mind that there is no legal separation in Texas, you are married until you are formally divorced, so post separation sexual intercourse with someone other than your spouse is legal adultery.

Still, many courts in Collin, Denton and Dallas Counties view adultery as a symptom or outlet showing from an underlying problem in the marriage. This means, that they are not given the weight in court that a cheated spouse may feel an affair deserves. I mean, your spouse broke his or her promise to you – at the very least you may feel the court should view this as a breach of contract, right?! Well, the court does have some power to right the wrong caused by an affair, but it tends to only come up in select cases.

What Can Proving Adultery Get in Court:

    • Property Division: You may receive a greater share of the community assets in your property division. This is the most common way the Courts compensate a cheated spouse. In general, Courts have a lot of leeway in deciding a “just and right division of the estate.” This means they can consider fault in the breakup of the marriage to determine whether one party should receive more or less of the community estate.
      • In addition, if you can prove that community funds and assets were spent on a paramour, you may be able to have a greater claim to additional assets and funds in a property division. An experienced family law attorney can explain this in more detail if this sounds like your situation.
    • Spousal Maintenance – if you already qualify for spousal maintenance for another reason, your spousal maintenance award may be increased if your spouse’s affair is shown to be the fault for the breakup of the marriage. 

If you have minor children, CUSTODY OF YOUR CHILDREN WILL NOT DEPEND ON ADULTERY. Custody, including conservatorship (Decision-making), visitation, child support, etc. will only be decided on the best interest of the children. Adultery will only be considered in child custody determinations if you can prove that the situation rises to a level that influences the best interest of the child (i.e. the paramour is a felon, uses drugs, or otherwise negatively involved in the child’s life).

Proving Adultery: pictures and videos are not required, but they can be used. You can also use circumstantial evidence such as phone records, social media records, receipts for purchases for the paramour, etc. 

When you find out about an affair, it is normal to be angry and hurt, but is it really best to air your dirty laundry in a public forum (where your neighbors, bosses, and kids could find out)? Will going “public” in your divorce papers or in the courtroom really change the outcome of the divorce? 

It is best to discuss the pros and cons of filing for divorce on the grounds of adultery with a knowledgeable, local family law attorney. The Frisco family law attorneys at Hanshaw Kennedy, LLP have experience dealing with the delicate issues of adultery and can help minimize the additional turmoil an affair may bring into the divorce process while focusing on the goals of the divorce and your post-divorce life. 


Combining my passion for the law with compassion for clients, I will help guide you through the legal system toward the best possible solutions to your family law concerns. I did not step foot in a courtroom until law school. That experience helps me understand clients who are unfamiliar with the law and gives me the ability to explain legal procedure and terminology in a way that is more accessible and relatable. In law school, I worked for Legal Aid Society of Lubbock, Inc. and the Office of the Attorney General, Child Support Division. In both positions, I dealt with a wide array of family law issues, and those experiences have given me the unique understanding of Attorney General’s Child Support Office to get results for my clients. My husband and I live in Princeton, Texas with two wonderful dogs, and we are expecting our first baby in May 2012.


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