Adultery is not a crime in Texas. It will not result in criminal charges or penalties, unless you’re in the military (which does classify it as a crime).

And though you may feel angry and hurt if you find out your spouse has been unfaithful, you’re the one who will likely end up facing criminal charges if you act on that anger.

Adultery can – and will – have legal ramifications, but those typically involve divorce, child custody, and property division cases.

What is Adultery in Texas?

Texas Family Code Section 6.003 references adultery, but does not define it. 

Based on case laws, adultery is defined as voluntary sexual intercourse of a married individual with someone who is not their spouse. For a Texas court to recognize it, the spouse who was cheated on must be able to prove adultery occurred. 

Note that cheating and adultery are not the same. While many people may consider kissing, groping, oral sex, sexting, or other sexually charged acts adultery, only sexual intercourse meets the legal definition in Texas.

Is Adultery Illegal in Texas?

Adultery is legal in Texas. If you’re facing criminal charges for actions that occurred after you caught your spouse cheating, the adultery itself is not a valid defense. However, there may be additional circumstances that should be considered, and you should speak with an attorney as soon as possible. 

Adultery is typically most relevant in divorce proceedings. Infidelity could be a key consideration when dividing community property, awarding alimony, or determining child custody arrangements.

Is Adultery a Valid Defense for Criminal Charges?

Throughout history, adultery has been used as justification for criminal acts, including assault and murder. However, domestic violence and family violence are illegal in Texas, while adultery is not. 

You will face serious criminal charges if you:

• Get into a physical or verbal altercation with your spouse’s affair partner
• Verbally or physically abuse your spouse for cheating
• Hire someone else to attack your spouse or their affair partner due to adultery

One client was accused of hiring someone else to physically injure a partner after learning of an alleged adulterous relationship. In these instances, even though you may have been the original wronged party, you are committing illegal acts in retaliation for actions that aren’t illegal. 

While we will certainly fight all charges against you, “my spouse committed adultery” won’t be a valid defense in court.

Adultery is a Crime Under Military Law

It’s worth noting that, despite Texas’ adultery laws, you could face charges if you’re in the military. Adultery is a crime in the military under Article 134 of the Uniform Code of Military Justice (UCMJ).

Commanders decide whether to charge a soldier with adultery based on several factors, including: 

• The marital status, rank, grade, and position of the accused and their affair  partner 
• The military status of the accused’s spouse and their relationship to the armed forces 
• Whether government time or resources were misused to facilitate the misconduct 

Depending on the circumstances, consequences can include: 

• Rank reduction 
• Administrative disciplinary action 
• Partial forfeiture of pay 
• Administrative separation 
• Dishonorable discharge 
• Not honorable discharge
• Confinement for up to one year 
• Denial of benefits 
• Jail time 

How Does Adultery Affect Divorce in Texas?

Adultery could have a significant impact on divorce proceedings. It could result in an at-fault divorce, which in turn could affect the distribution of marital assets. 

In Texas, an at-fault divorce is granted when one spouse blames the other for the end of the marriage. Spousal support (known colloquially as “alimony”) is listed in the Texas Family Law Code as grounds for an at-fault divorce.

A divorce granted on fault-based grounds can benefit the spouse seeking the divorce when alimony, child support and division of marital assets are negotiated.

However, the spouse seeking the at-fault divorce must be able to prove that the other spouse caused the marriage to end. Evidence can be circumstantial or direct, including bank statements, phone records, emails, and text messages.

How is Adultery Proven in Texas?

Evidence must show that the infidelity occurred during the marriage, which includes any time during a separation. Clear and positive proof is required to prove adultery in court, although it can be established by direct or circumstantial evidence, including emails, photos, texts, social media, and other documents. The burden of proof for proving adultery is clear and convincing, and suggestions and innuendo are insufficient.

How Will Adultery Affect Child Custody in Texas?

Infidelity will not affect child custody directly. However, if it can be proven that the marital infidelity affected the child (or the child/parent relationship), a judge will take this into consideration. 

Examples:

• Your new partner places your child at risk
• You prioritize your new relationship over your child’s care
• You’ve inappropriately introduced your child to your new partner

Does Adultery Impact Alimony in Texas?

The law in Texas doesn’t guarantee spousal maintenance (or alimony). A spouse requesting alimony must be unable to meet their own minimum reasonable financial needs.

After that, at least one of these other factors must apply:

• The requesting spouse has a mental or physical condition that prevents them from earning enough money to meet their minimum reasonable needs
• The paying spouse was convicted (or gotten deferred adjudication) for family violence against a requesting spouse or child over the past two years
• The requesting spouse will assume primary care for a child who requires substantial care, preventing them from earning enough money to meet their minimum financial needs
• The marriage lasted a decade or more, and the requesting spouse can’t earn enough to meet their minimum financial needs. In this instance, the requesting spouse must also be able to establish that they either have attempted to meet their own financial needs or have been working to develop skills that will help them meet their minimum needs. 

More Commonly Asked Questions About Adultery

Adultery vs. Bigamy: What’s the Difference?

Under the Texas Penal Code Chapter 25.02, bigamy occurs when a person who is legally married to another attempts to or does marry a person other than his or her spouse or lives with a person other than their spouse with the appearance of being married to this person.  A person may also commit bigamy by attempting to or marrying a person who is already legally married to another, or by living with said person and holding out as married to the person.

Bigamy is a felony offense in Texas with a punishment range of not less than two, and not more than ten years in the Texas Department of Criminal Justice Institutional Division, with up to a $10,000 fine. 

Unlike adultery, bigamy can be used to enhance the punishment ranges of certain sexual offenses, including sexual assault and indecency with a child, if the state can prove that the alleged perpetrator was legally married to another at the time of the offense, according to Texas Penal Code 22.011(f).

Further, the Texas statute’s definition of bigamy also includes deviant sexual intercourse (sexual contact that is oral or anal). 

Is it Adultery if it Occurred after Separation in Texas?

There is no such thing as legal separation in Texas. Marriage remains official until a divorce decree is issued. That means that any sexual activity that takes place will be considered adultery until the divorce has been finalized.

Is All Cheating Considered Adultery in Texas?

We all have different definitions of cheating. It’s a very broad category, and is open to interpretation. However, not all cheating is considered adultery. In Texas, adultery requires sexual intercourse. Many sexual encounters outside of conventional intercourse won’t legally be considered adultery, but probably would be considered cheating. This includes kissing, touching, groping, sexting, oral sex, etc. 

Is Sexting Considered Adultery in Texas?

No. When two consenting adults exchange sexually charged texts, photos, or emails with someone other than their spouse, it doesn’t meet the state’s definition of adultery. However, evidence of these communications can be used by a judge to determine a just and equitable division of the marital estate in a divorce proceeding.