Issue
During my 30 years representing clients in divorce cases, adultery is an issue that comes into the conversation very offer and is usually misunderstood by the client. Whether a spouse should allege adultery (infidelity) as a fault ground in a Texas divorce petition, what legal benefits and risks accompany such an allegation, and what must ultimately be proven at trial.
Short Answer
Texas is both a no-fault and fault-divorce state. A petitioner may seek a divorce based solely on “insupportability” (no-fault), or may also allege fault grounds such as adultery. Alleging adultery can provide strategic advantages where the evidence is strong and where the misconduct had a material effect on the marriage or the marital estate. However, alleging adultery without substantial evidence can increase litigation costs, delay settlement, increase discovery disputes, and potentially undermine credibility with the court.
Importantly, proving adultery does not automatically entitle a spouse to a larger property award or increased spousal maintenance. Rather, adultery is one factor a Texas court may consider when making a “just and right” division of the marital estate.
I. Texas Law
Under the Texas Family Code, a divorce may be granted on either:
- No-fault grounds (insupportability); or
- Fault grounds, including:
- adultery;
- cruelty;
- abandonment;
- felony conviction;
- confinement in a mental hospital; and
- living apart.
Adultery remains a valid statutory fault ground.
II. What Constitutes Adultery?
Texas courts generally define adultery as:
Voluntary sexual intercourse between a married person and someone who is not that person’s spouse.
An emotional affair, flirtation, inappropriate texting, pornography use, or online relationships generally do not, standing alone, constitute legal adultery unless they are accompanied by evidence of sexual relations.
III. Burden of Proof
The spouse alleging adultery bears the burden of proof.
The standard is:
Preponderance of the evidence, meaning it is more likely than not that adultery occurred.
Unlike criminal cases, adultery does not have to be proven beyond a reasonable doubt.
IV. Direct Evidence Is Not Required
Texas courts recognize that adultery is rarely proven by eyewitness testimony.
Accordingly, circumstantial evidence may be sufficient.
Examples include:
- hotel receipts;
- travel together;
- overnight stays;
- photographs;
- admissions;
- text messages;
- emails;
- dating applications;
- social media communications;
- financial records showing expenditures for another partner;
- GPS or location data;
- witness testimony.
The evidence must reasonably support the conclusion that sexual relations occurred—not merely suspicion.
V. Suspicion Alone Is Insufficient
Texas appellate courts have consistently held that:
- suspicion,
- opportunity,
- jealousy, or
- speculation
are not enough.
There must be evidence that rises above mere suspicion and reasonably supports an inference of adultery.
VI. Why Plead Adultery?
There are several potential strategic advantages.
A. More Favorable Property Division
The greatest legal significance of proving adultery is its effect on property division.
Texas is a community-property state.
However, community property is not necessarily divided equally.
Instead, the court divides property in a manner that is:
“just and right.”
Fault in the breakup of the marriage—including adultery—is one factor that may justify awarding a disproportionate share of community property to the innocent spouse.
Examples include:
- 55/45 division
- 60/40 division
- occasionally greater disparities depending upon circumstances.
There is no fixed formula.
B. Reimbursement for Dissipation of Community Assets
If a spouse spent community funds on an affair, the court may consider:
- gifts;
- vacations;
- jewelry;
- apartments;
- rent;
- hotels;
- airfare;
- restaurants;
- entertainment;
- support payments to the paramour.
This is often characterized as:
- fraud on the community,
- waste,
- or dissipation of community assets.
The innocent spouse may seek reimbursement or an unequal division to offset those expenditures.
Frequently, the financial misconduct is more valuable than proving the affair itself.
C. Settlement Leverage
Strong evidence of adultery sometimes encourages settlement because:
- public testimony may be embarrassing;
- discovery may reveal additional financial misconduct;
- the adulterous spouse may wish to avoid extensive litigation.
However, this leverage exists only if the evidence is credible.
D. Credibility Issues
If the adulterous spouse lies under oath regarding the affair and the lie is disproven, the court may view that witness’s credibility unfavorably.
Credibility can affect numerous disputed issues.
VII. Potential Disadvantages
A. Increased Litigation Costs
Alleging adultery frequently results in:
- subpoenas;
- forensic examination of phones;
- depositions;
- discovery disputes;
- motions to compel;
- requests for financial records.
These expenses can become significant.
B. Delay
Fault-based divorces often require:
- additional discovery;
- more witnesses;
- longer hearings;
- expert testimony regarding financial tracing.
This may substantially increase the duration of the case.
C. Escalation of Conflict
Alleging adultery can make settlement more difficult.
Once allegations become personal, parties often become less willing to compromise.
D. Weak Evidence Can Harm Credibility
If adultery is alleged but the evidence proves weak or speculative, the court may conclude that the allegation was exaggerated.
While merely failing to prove adultery does not ordinarily result in sanctions, unsupported accusations may diminish a party’s credibility and distract from stronger issues, particularly those involving children or finances.
VIII. What Must Actually Be Proven?
The petitioner should establish:
1. A sexual relationship occurred.
Not merely inappropriate communications.
2. The conduct occurred during the marriage.
Conduct after separation but before divorce may still constitute adultery because the parties remain legally married until the divorce decree is signed.
3. The evidence is credible.
Judges evaluate:
- consistency;
- corroboration;
- documentary evidence;
- witness credibility.
4. If requesting a disproportionate property division:
The petitioner should also demonstrate:
- how the affair contributed to the breakup of the marriage;
- or
- how community assets were spent on the affair.
IX. Discovery Commonly Used
Where adultery is alleged, attorneys frequently seek:
- bank statements;
- credit-card statements;
- Venmo/Cash App/Zelle records;
- airline records;
- hotel invoices;
- cell-phone records;
- text messages;
- emails;
- dating-app records;
- social-media messages;
- photographs;
- surveillance evidence (where lawfully obtained);
- business expense records;
- electronic location history.
Discovery must comply with the Texas Rules of Civil Procedure and applicable privacy laws.
X. Effect on Child Custody
Adultery alone generally does not determine conservatorship or possession.
Texas courts decide custody based upon the child’s best interest.
However, the affair may become relevant if it affects parenting, for example:
- exposing children to inappropriate situations;
- neglecting parental responsibilities;
- unsafe living arrangements;
- introducing multiple romantic partners in ways harmful to the child.
Otherwise, adultery alone is often given little weight in custody determinations.
XI. Practical Litigation Strategy
In many cases, the stronger claim is not simply that adultery occurred, but that the affair involved misuse of community funds. Documentary financial evidence often has greater practical impact than testimony concerning the relationship itself.
When evidence of adultery is compelling and supported by objective records or admissions, pleading fault may strengthen the case for a disproportionate division of community property and enhance settlement leverage. Conversely, where evidence is limited to suspicion or inference, pursuing a no-fault divorce while focusing on financial misconduct, if any, may better preserve credibility and reduce unnecessary litigation costs.
Conclusion
Alleging adultery in a Texas divorce petition is a strategic decision rather than a routine one. The allegation can support a request for a larger share of the community estate, particularly where there is evidence that the affair contributed to the dissolution of the marriage or involved the expenditure of community funds. The evidentiary burden is a preponderance of the evidence, and circumstantial evidence may suffice if it reasonably supports the inference that adultery occurred. Nevertheless, unsupported allegations can increase expense, prolong litigation, and weaken a party’s credibility. Before asserting adultery as a fault ground, counsel should evaluate the available evidence, the likelihood of proving the claim at trial, and whether the anticipated benefit outweighs the additional costs and complexity of fault-based litigation.
