How Does an Affair Affect Divorce?


If your spouse has had an affair, there is no doubt it has affected your marriage. In fact, it may even be one of the reasons, if not the sole reason, for your divorce.

While infidelity is hurtful and often causes irreparable damage to relationships, in Texas it is not illegal. That said, extramarital affairs can impact your divorce.

If adultery has played a role in your relationship and you are considering a divorce, consulting with a seasoned Texas divorce lawyer is a smart move.

Situations like this are emotional, and the law is complicated. Having an experienced professional guide you through the process, offering advice and counsel, is the first step you can take in investing in your future.

The Categorization of Affairs

How Does Adultery Affect Divorce?

What exactly is adultery? It may seem strange, but many are unaware of the technical definition of adultery and how it can impact their divorce. You see, in Texas, divorce can be either no-fault or fault. According to Texas Family Code § 6.003 adultery is grounds for a fault-based divorce. The definition of adultery is voluntary sexual intercourse between an individual who is married and a person other than their spouse.

In order to be granted a divorce on the grounds of adultery, though, you must be able to prove that the incident occurred and that it was the cause of your broken marriage. It is important to understand that if sexual intercourse, specifically, did not occur, then your spouse cannot be accused of adultery. In short, actions like kissing, touching or even online relationships and sexting are not considered adultery by law. Proving adultery could impact your divorce with regard to the division of property and even alimony.

Those in the process of a divorce should be aware that they can be accused of adultery even after they have made the decision to officially end their relationship. Technically, you are legally married until your divorce is finalized, so dating before that time could prove to be problematic. Basically, It may be wise to enter into new relationships cautiously and wait until all the papers are signed.

Does Infidelity Affect Divorce?

Infidelity is much broader than adultery — it simply refers to being unfaithful in your marriage. This form of cheating can be incredibly painful and impact how you choose to move forward. Not everyone who has experienced infidelity elects to end their marriage though; in fact, many are able to heal and remain together. For those who cannot and begin the divorce proceedings, the level of their spouse’s infidelity can absolutely influence their divorce.

Rely on Your Texas Divorce Lawyer for Accurate Information

There are many misconceptions about how an affair can affect divorce. Some are so common that people pass along false information or poor advice with a relative degree of confidence. Here are three examples of myths you may have heard about how an affair can affect a divorce:

  • Myth 1: If you committed adultery, you cannot receive alimony.
  • Myth 2: If you were unfaithful, then you lose custody of your children.
  • Myth 3: It isn’t adultery if you were separated.

Myths 1 and 2

Adultery will not affect someone’s eligibility for alimony and will not prevent them from having custody of the children. Alimony is meant to allow individuals to dissolve their marriage yet still leave it as financial equals.

There are specific circumstances that enable someone to receive alimony in the state of Texas.

For example, the marriage had to have lasted at least ten years, and the spouse requesting alimony cannot earn enough to support themself. Another reason alimony may be awarded is when one person must care for a disabled child. The time commitment related to this responsibility makes it impossible for them to obtain outside employment.

When the situation meets the legal criteria for requiring alimony, judges rely on many factors to arrive at the amount and duration of spousal support. And one of many factors that play into that is adultery.

Although adultery itself will not jeopardize custody, the behavior connected to it might. Did the cheating spouse do so when the child was with them? Did the new person expose the child to something that caused mental or physical harm? These are examples of how actions connected to adultery could impact custody rather than the act itself. While you may wonder generally how adultery can affect the outcome of a divorce, it is important to consider its impact on specific elements of a divorce proceeding.

Myth 3

Although some states allow a couple to legally separate and have relationships while still married, Texas is not one of them. Texas does not recognize legal separation.

In other words, you and your spouse may agree to time apart. This could be viewed as a trial separation while the two of you work through some of your issues, both together and separately. During this time, you may even live in two different places. Regardless of what was discussed, you are still legally married. So, if you believe that having an affair while living separately won’t be an issue, you may find out the hard way how adultery can affect a divorce.

It is important to note that you continue to be married even after the divorce process is underway. Any relationship that occurs during this time could be seen as adultery.

Impacts of an Affair on Your Divorce

As discussed, affairs can impact divorce – both in determining fault and in the decisions the court makes regarding your future. Consider the following and consult with your divorce lawyer with questions.

Does an Affair Affect Alimony?

Alimony is the money one spouse (the one in a better financial position) pays to the other in order to help them get settled and become self-sufficient after the divorce. In many cases, one spouse continued to work once they were married, while the other may have taken a professional step backwards in order to care for children, maintain a home, or support the other spouse in their endeavors. In Texas, the amount of alimony is determined by the courts and takes into account the financial sacrifices made by spouses in certain situations. As stated above, it is a myth that if you committed adultery, you cannot receive alimony.

Proving adultery will not prevent you from paying or receiving alimony; however, it can affect how much you will receive and for how long the payments will last.

What Effect Does Cheating Have on Child Custody Decisions?

Good people make bad decisions. Child custody laws in Texas realize this, and parents guilty of cheating and, even adultery, may not have their custody agreement affected.

That said, when custody of minor children is at issue, the courts do hold divorcing parents to a higher standard of behavior. Thus, parents are encouraged to refrain from entering into new relationships until their divorce is finalized. When they don’t, and children are exposed to behaviors the courts deem inappropriate, custody decisions may be affected.

What Impact Does an Affair Have on the Property Division?

During divorce the division of property is a major, and often contentious, process. Marital property (assets co-owned by a married couple) includes everything from homes and cars to investment and retirement accounts and even businesses.

Texas is not a 50/50 state; thus, marital property is divided in a manner that is just and right as determined by the courts. When adultery is proven, the individual found guilty of it may be penalized in the distribution process. Of course, the final decision regarding this resides with the judge on the case. He or she will review exactly what happened and take that into account. Certain circumstances tend to impact division more strongly.

How Does Cheating Impact Your Divorce?

Your Divorce Attorney Can Help Explain

Actions have consequences, but the extent varies — especially when the issue is infidelity and divorce. While cheating and adultery will not affect your ability to divorce, it certainly can determine if the divorce no-fault or fault.

Additionally, adultery can also have an impact on the decisions made during the divorce process, including alimony and property division. That said, these behaviors must be proven; even when they are, their extent determines the impact to many of the financial decisions made by the court.

Managing the divorce process is challenging. And it becomes even more so when one of the spouses has been unfaithful. In all cases, working with a skilled divorce attorney is wise. You want the advice and counsel of a legal professional who is committed to protecting your best interests.

Contact Amsberry Law Today

Since 1995, Amsberry Law Firm has been providing legal services connected with family law. Our focus is to fight to put our clients in the best position post-divorce. We go the distance for you! We are ready to answer your questions about how an affair can affect a divorce, as well as help you navigate the road ahead. Contact our divorce attorney today at 210-354-2244 and learn just how powerfully we can support you.

Attorney Russell Amsberry

Attorney Russell J.G. Amsberry

Attorney Russell J.G. Amsberry founded the Amsberry Law Firm in 1995 with the goal of providing clients with exceptional, focused representation on their issues. His success as a legal advocate has been reflected in the numerous professional honors he has received, such as speaking engagements and inclusion in Scene in SA magazine’s listing of the best lawyers in San Antonio, a Distinguished rating from Martindale-Hubble, and an amazing rating from Avvo. [ Attorney Bio ]

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Amsberry Law Firm

The Amsberry Law Firm, founded in 1995, has helped thousands of clients overcome their unique legal challenges.

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