What is adultery in Texas?
Adultery is a legal term in Texas that means the voluntary sexual intercourse of a married person with one not the spouse.
Texas Family Code § 6.003. Adultery does not have to occur pre-separation for it to be a ground for granting a divorce. In re Marriage of C.A.S. and D.P.S., 405 S.W.3d 373 (Tex. App. Dallas 2013). Even if a relationship with another person begun only after the separation of the spouses, that person may be found to have committed adultery.
Adultery vs. Infidelity
Keep in mind that in Texas adultery requires sexual intercourse. Certain sexual encounters that are not specifically intercourse are not legally considered adultery. This marks the distinction between the legal term adultery versus the terms infidelity, cheating, or such.
Exchanging sexually charged emails, photos, or texts with another person will not be adultery. Kissing, groping, petting, or even oral sex is not considered legally adultery.
Is it Still Adultery if You're Separated?
Yes. Adultery does not have to be prior to the separation of the parties, but can include relationships after separation but prior to divorce. In Texas, remember, you are married until you are divorced; there is no legal separation in Texas.
How Adultery Affects Divorce
Adultery can cause a divorce to be granted in favor of one spouse or another, as opposed to being granted on no-fault grounds. Determining one party’s fault in the break-up of he marriage can then be used to support a disproportionate division of the community property between the parties.
An adultery finding in Texas will not make a spouse eligible for alimony or spousal maintenance. An adultery finding alone will not change the outcome of child custody or conservatorship provisions either. As one judge put it, committing adultery may make you a bad spouse and give a reason for divorce, but it does not necessarily make you a bad parent.