Adultery and Its Role in Divorce Cases

Adultery, affair, extramarital relationships. Many of our clients are faced with this difficult issue during their divorce. This page is dedicated to helping you understand the legal ramifications and remedies of adultery or adulterous affairs connected with divorce.

Divorce and Adultery in Texas FACTS
Fact: According to Texas law, adultery is a cause and basis for divorce in Texas.

Fact: Adultery is not an illegal crime against the laws in Texas. Jail is not given as punishment for adultery.

Fact: Adultery is an act of betrayal against a spouse. As such, it causes hurt, pain and anger. Anger can cause the innocent spouse to inflict pain upon the adulterer in the divorce proceedings.

Fact: Each Court's approach to adultery is completely different depending upon the temperament of the judge, and the county where the divorce is proceeding.

Here's two possible scenarios using the names of fictitious judges.

Judge Apple
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
Judge Ball hates adulterers, hates what it does to a marriage, and will immediately remove a child from the adulterer without further ado.

Judge Candy
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.

Children and an Adulterous Parent. If in a custody case where adultery is an issue, you are in jeopardy. Bringing a nonmarital partner into the lives of the children such that they know and are aware that one parent and a third party are lovers is to risk possession and custody of the children. 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.

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.

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 email 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.

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.

Dallas Divorce Attorney
DFW Family Law Lawyer