Adultery And Property Division in Texas

The Marble Team

Adultery And Property Division in Texas

Family Law
| 5 min

How An Affair Can Impact Property Division in Texas

Are you getting divorced as a result of adultery, committed either by you or your spouse? Well, if you live in Texas, you should be aware that infidelity can, and often does, have a significant impact on your divorce settlement.

By proving adultery by their partner, the other spouse may benefit from an improved outcome in property division, alimony (spousal maintenance), and child custody.

That said, things may not be quite as clear-cut as they first appear. In the first instance, you have to prove adultery, which isn’t always that easy to do. And even if you can, there are certain circumstances where the infidelity doesn’t have any tangible impact on the final settlement. 

As with so many aspects of divorce law, the legislation around the impact of adultery is complicated and complex. So to cut through the confusion, we’ve written this simple and straightforward guide on the subject. We’ll explain what qualifies as adultery, how to prove it, and how it impacts your final settlement. By the end, you’ll have a clear understanding of how an affair affects property division, alimony, and child custody in a divorce in Texas.

What Qualifies As Adultery In Texas

Under Texas state law, adultery is one of several grounds for divorce (other reasons include cruelty, a felony conviction, abandonment, and more). To commit adultery is to voluntarily engage in intercourse with someone that isn’t your spouse while you’re still married. Note that even if you and your spouse live separate lives, technically, it still counts as adultery if you sleep with someone else.

Although adultery isn’t illegal in itself, in some cases, it can have a significant impact on the outcome of a divorce in areas like the division of property. However, for that to happen, first, the court needs to see evidence or proof of the adultery.

The Exception To Even Community Property Division During Divorce

If adultery caused the marriage to end, the court needs to consider what the innocent spouse is missing out on had the marriage continued. Additionally, if the innocent spouse shows that community assets supported the affair - like expensive hotel rooms, flight tickets, and gifts paid from a joint account - the judge may rule that the at-fault partner should receive a smaller share of shared assets.

How Texas Courts Treat Infidelity In Divorce Proceedings

Infidelity is a potentially essential consideration in Texas’s divorce proceedings, but it’s by no means the only factor. There may be other considerations or mitigating circumstances, for example. The same principle applies to the division of property and child custody. The judge will look at both spouses’ behavior, actions, and conduct before coming to a final decision. Ultimately, the infidelity may have no impact whatsoever on the final decision.

How Infidelity Impacts Property Division

Under Texas law, community property is divided on the principle of what’s just and right. Community property covers jointly owned assets, like houses, apartments, vehicles, antiques, bank accounts, and more, plus any debts. There are some exceptions to community property - like a house you owned before you married or jewelry you inherited - but it can be a grey area.

In most cases, courts tend to opt for a 50/50 separation when it comes to shared community property. Even if you can prove adultery, the judge may still proceed on that basis. To be awarded more than 50%, you’ll need to show that the infidelity caused your marriage to end or that your spouse spent community assets on the extramarital affair. 

Why Proving Infidelity Matters Here

Being able to prove infidelity is significant in a Texas divorce because it may influence the judge’s ultimate decision on property division, maintenance, and custody. You may receive a significantly better settlement as a result of your spouse’s indiscretion.

However, it’s important to state that even if you do prove adultery, in some cases, it’ll have no impact on the final decision. Divorce law is complicated, and every case is unique.

Does Infidelity Impact Alimony? What About Custody?

The first point to state here is that under Texas law, there’s no guarantee of alimony. The judge needs to consider a wide range of factors, of which adultery is just one, before deciding whether maintenance is payable. What’s more, Texas has a reputation of being one of the most complex states to claim alimony.
Concerning child custody, the fact that one spouse has been unfaithful doesn’t necessarily affect the court’s decision. The judge is legally obliged to examine many aspects, guided by the principle that all decisions are made in the child’s best interests. Accordingly, other factors may take precedence over adultery. 

That said, if infidelity has impacted a child, there’s a good chance that it will be considered before any final decision is made.

How A Lawyer Can Help You Sort The Impact Of An Affair During Divorce Proceedings

Whether you or your spouse had an affair, having a qualified divorce lawyer on your side can be highly beneficial to your case. A family attorney can share the workload, provide expert advice, reduce stress levels, and make sure you avoid any costly mistakes. 
If you had an affair, an attorney could advise you on whether it’s likely to have any effect on the judge’s verdict and strategies to mitigate any impact.

If your spouse had an affair, a lawyer could advise you on whether you can leverage the situation to improve your settlement. They can also ensure you present any evidence correctly.


No two divorces are the same, so what might be significant in one case may be immaterial in another. That’s undoubtedly true with divorces in Texas involving adultery. If you want to be sure of where you stand, an experienced divorce attorney is best placed to give you the valuable advice you need.

Dec 30, 2020
The Marble Team