Adultery & Divorce

Adultery - Affair - Extramarital Relationship and Divorce. In recent times more and more of our clients are having to deal with this issue through their divorce. This page and its' daughter pages were placed within this site in order to get you the information that you need with regards to adulterous affairs during a divorce.

Myths and Facts on Divorce and Adultery

1) Adultery, pursuant to the Texas Family Code, is a cause and basis for divorce in Texas. It does have an impact upon property division. It is not a basis, however, for the award of child custody.

2) Adultery is not illegal in the sense that it is not a crime against the laws of the State of Texas. Neither you nor your spouse goes to jail because one of you had an extramarital affair. In that same regard, you cannot sue the person who enticed the spouse.  There is no alienation of affection in Texas.

3) Adultery is an act of betrayal against a spouse. As such, it will cause untold hurt, pain and anger. Anger will cause the innocent spouse to do all that she or he can do to inflict pain upon the adulterer in a divorce proceeding.

4) If you are involved in an affair, assume that you spouse will figure it out. He or she will pick up your telephone and review the text messages.  He or she will, look under the seat of your car for that 7-11 prepaid telephone (one of our clients was sitting in his wife's car when the prepaid phone rang).  He or she will review credit card statements and stumble upon the Victoria Secretes and the florist. 

5) Each Court's approach to adultery is completely different depending upon the temperament of the judge, and the county in which the divorce is proceeding. The following bullet points describe possible scenarios - Judge Apple, Judge Ball and Judge Candy are fictitious.

  • Judge Apple does not care about an adultery issue because that which caused the adultery also caused the divorce. In other words, these people were not getting along (discord and conflict within the marriage) causes both adultery (one spouse seeks the companionship of another) and divorce (one spouse seeks out a lawyer).

  • Judge Ball hates adulterers, hates what it does to a marriage, and will immediately remove a child from the adulterer without further ado. In Collin County, there were a couple of judges, not on the bench anymore, who followed this line.

  • Judge Candy takes a middle ground approach. She wants to know what the status of the marriage was prior to the adultery, whether the parties were separated (separate homes or bedrooms), and whether the adultery is the cause of the breakup of the marriage. If the adultery occurred sometime after separation, or during the divorce, she will not give much weight to it. If the adultery is the cause of the divorce, in other words the parties were happily married and had great plans prior to entry of the outside party, then she will attribute fault and rule in accordance.

In our experience, most judges fall into the Judge Candy category. That is, if marital discord and conflict was the status quo prior to the affair, then not a whole lot of weight will be given to it - especially, if the parties are separated and living apart prior to initiation of divorce proceedings. If all was well with the marriage but the adultery caused the marital discord and conflict, the judge will give great weight to it. They will protect the innocent spouse.

6) Adultery in the custody context:  In accordance with the case law, the fact that one spouse cheated on another should not be considered in the custody determination.  However, if adultery is an issue, the cheating spouse can be in jeopardy. If a parent brings their nonmarital partner into the lives of the children such that they know and are aware that one parent and a third party are lovers then that parent has risked possession and custody of the children. If the paramour is spending the night while the children are present, or if the children are being dropped off at a friend's home while the parent goes out, then facts such as these will have an impact upon the child custody determination.   If you have a third party relationship, don't bring that person into the children's lives until your relationship is well established and the divorce is concluded.  The best advice, if you are in a child custody case drop the lover until the case is concluded.

Adultery Offense and Defense in a Divorce

Innocent Spouse: Get all the information that you can from e-mails, correspondence, credit card statements, long-distance bills, mobile phone, and voice mail. Be aware of criminal penalties associated with wiretapping, including unlawful interception of e-mail, and breach of computer security.

Adulterer Spouse: Protect your communications. Spouses will get passwords, will view accounts electronically, will find out all that they need to know. Don't be stupid. Don't assume anything. See above and below. Drop the lover.

1) E-Mails. If you are an innocent spouse, get all the e-mails (print them out) that you can between your spouse and the paramour. Conversely, if you are the adulterer, change e-mail accounts immediately. Your spouse will find them. Furthermore, do not save e-mails on the hard-drive of your work or personal PC. They can and will be subpoenaed. Case in point, spouse knew social security number and credit card number, she was able to con America Online into providing her the password to husbands account.  Wife left Outlook up and running,  paramour's emails were automatically downloaded for the world to look at.

2) Voice Mail. If you are the innocent spouse, save and record all voice mail between the lovers. Do not intercept electronic communications. Conversely, if you are the adulterer do not leave voice messages. Spouse will find them.

3) Credit Card Statements. If you are the innocent spouse, examine and obtain all credit card statements. Look for gift items (Victoria's Secrete), motel rooms, travel, and floral shops. One spouse sends to the paramour the "I love you more than anything" message with roses. Spouse got a copy, had it, used it. Conversely, if you are the innocent spouse, don't use the credit cards including company credit cards to make purchases for the girl or boyfriend.

More Divorce & Adultery Information



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