Adultery is not a crime in Texas. The Texas Penal Code contains no statute making infidelity a criminal offense, so no one faces arrest, prosecution, or jail time for cheating on a spouse. The consequences are civil, and they show up in divorce court, where a judge can factor a proven affair into how property is divided and whether spousal maintenance is awarded. The financial fallout can be significant.
How Texas Law Defines Adultery
Texas courts define adultery narrowly: voluntary sexual intercourse between a married person and someone other than their spouse. Romantic texting, explicit photos, emotional affairs, and even physical contact short of intercourse generally do not meet the legal threshold. Whether sexual contact other than intercourse qualifies remains a gray area among Texas family law practitioners, but the traditional standard requires proof of actual intercourse.
Timing matters. For an affair to be legally relevant, the sexual relationship must have occurred while the marriage was still intact. That includes any period of separation before the divorce is finalized. A relationship that began after the divorce decree was signed carries no legal weight.
The spouse alleging adultery does not need a photograph or recording of the act itself. Circumstantial evidence is enough. Courts routinely consider text messages, hotel receipts, financial records showing unexplained spending, phone records, and testimony from people who observed the couple together. The standard is whether the evidence, taken as a whole, makes infidelity more likely than not.
Adultery is one of the recognized fault grounds for divorce in Texas, alongside the no-fault option of “insupportability.”1State of Texas. Texas Family Code 6.003 – Adultery2State of Texas. Texas Family Code 6.001 – Insupportability Filing on fault grounds opens the door to a more favorable division of marital property and can influence maintenance decisions.
What Adultery Costs in the Property Division
Texas is a community property state. Most assets and debts acquired during the marriage belong to both spouses equally, and a divorce court divides the community estate in whatever manner it considers “just and right,” with attention to the rights of each spouse and any children.3State of Texas. Texas Family Code 7.001 – General Rule of Property Division That language gives judges broad discretion, and a proven affair is one of the factors that can tilt the split away from a straight 50/50.
A judge who finds that one spouse’s adultery caused the marriage to fail may award the faithful spouse a larger share of the community estate. The size of that disproportionate share depends on how long the affair lasted, whether marital funds were spent on it, and what other factors like each spouse’s earning capacity and health look like in the overall picture.
Fraud on the Community
Where adultery really hits hard financially is when the cheating spouse spent marital money on the affair. Texas law calls this “fraud on the community.” If a court finds that a spouse depleted community assets through actual or constructive fraud, the judge must calculate how much was lost, reconstruct what the community estate would have been worth without the fraud, and then divide that reconstructed estate.4State of Texas. Texas Family Code 7.009 – Fraud on the Community, Division and Disposition of Reconstituted Estate
The remedies are substantial. A judge can award the wronged spouse a larger share of whatever community property remains, issue a money judgment against the spouse who committed the fraud, or both.4State of Texas. Texas Family Code 7.009 – Fraud on the Community, Division and Disposition of Reconstituted Estate If a spouse spent $40,000 on trips, gifts, and an apartment for an affair partner, the court can effectively make the unfaithful spouse bear the full cost of that spending in the property division.
Building the claim takes financial documentation: bank statements, credit card records, and receipts showing where the money went. The spouse bringing the claim needs to show the spending was for the affair rather than the household, and that it happened without the other spouse’s knowledge or consent.
Effect on Spousal Maintenance
Spousal maintenance in Texas is harder to get than many people assume. Before a court considers the amount or duration of maintenance, the spouse requesting it must prove they will lack enough property after the divorce to cover their basic needs. Beyond that financial threshold, they must also meet one of several qualifying conditions: the other spouse committed family violence during the marriage, the marriage lasted at least 10 years and the requesting spouse cannot earn enough to be self-supporting, the requesting spouse has a disabling physical or mental condition, or the requesting spouse is the primary caretaker of a child with a disability.5State of Texas. Texas Family Code 8.051 – Eligibility for Maintenance
Once a spouse clears those hurdles, adultery enters the picture. Texas law lists “marital misconduct, including adultery” as one of the factors a judge must weigh when setting the nature, amount, and duration of maintenance payments.6State of Texas. Texas Family Code 8.052 – Factors in Determining Maintenance This cuts both ways. If the spouse asking for maintenance is the one who cheated, a judge could reduce or deny the award. If the paying spouse had the affair, the judge could increase it.
Effect on Child Custody
Texas courts decide custody based on one overriding standard: the best interest of the child.7State of Texas. Texas Family Code 153.002 – Best Interest of Child, Rebuttable Presumption in Suit Between Parent and Nonparent A parent’s affair, standing alone, does not disqualify them from custody or limit their time with the child. Judges are not in the business of punishing bad spouses through custody orders.
The calculus changes when the affair directly affected the child. If a parent brought the affair partner around the children in confusing or inappropriate circumstances, exposed them to conflict or instability, or neglected parenting responsibilities while pursuing the relationship, a judge can weigh those facts when setting custody and visitation. A discreet affair the children never knew about is unlikely to move the needle. Courts care about parenting, not morality.
Two Things You Cannot Do
First, you cannot legally snoop on a spouse’s electronic communications, even if you are certain they are cheating. The Federal Wiretap Act prohibits intercepting electronic communications, including emails in transit, without consent, and there is no spousal exception.8Office of the Law Revision Counsel. 18 USC 2511 – Interception and Disclosure of Wire, Oral, or Electronic Communications Prohibited The Stored Communications Act separately prohibits unauthorized access to stored electronic communications like saved emails or social media messages. A first offense for accessing stored communications in furtherance of a tortious act can carry up to five years in prison; subsequent offenses carry up to ten.9Office of the Law Revision Counsel. 18 USC 2701 – Unlawful Access to Stored Communications Evidence obtained illegally may also be inadmissible, so the snooping spouse risks prosecution while gaining nothing usable in the divorce.
Second, you cannot sue the affair partner. A handful of states still allow a scorned spouse to file a civil lawsuit against the person their partner cheated with, typically called “alienation of affection.” Texas is not one of them. Texas does not recognize alienation of affection or criminal conversation claims, so there is no legal avenue to hold a third party financially responsible for interfering with your marriage. Any financial consequences for the affair flow through the divorce itself.