How to Prove Adultery In A Divorce In Texas


A marriage is built on trust, and few things in life are as painful as finding out your spouse cheated on you. In Texas, you can divorce for adultery, but you must prove it for a fault-based divorce. However, if you can prove your case, you have a much higher chance of getting the outcome you want in your divorce.

The Austin divorce lawyers at Smith Family Law know how painful it is when spouses cheat and have helped many people in your situation. We understand Texas divorce laws and how to prove your spouse betrayed your marriage. If you want to know more about how to prove adultery in a Texas divorce, read on.

Proving Adultery in Texas Divorce

Why does proving adultery matter in a Texas divorce? Put simply, adultery is grounds for a fault-based divorce, and evidence of fault can affect many aspects of a divorce. If you can prove your spouse committed adultery, you are more likely to receive a large alimony award, you might gain full custody over any children from your marriage, and you might receive a larger child support award.

One thing to note about fault-based divorces in Texas is that you need hard proof to support your claim. Without clear evidence of your spouse’s infidelity, the courts will make their decisions based on the no-fault approach, which can significantly impact everything from the division of shared marital property to who retains custody over any children from the marriage. If you suspect spousal infidelity, collaborating with a skilled divorce lawyer is essential to substantiate your claim.

Grounds for Divorce in Texas

Including adultery, there are seven reasons (the legal term is “grounds”) the courts may use to grant a divorce in Texas. According to the Texas Family Code, the seven valid grounds for divorce are:

  • Insupportability: If two spouses no longer get along and feel there’s no way to repair the marriage, either spouse can file for divorce on the grounds of “insupportability.” Since there is no fault assigned in divorces based on insupportability, this is popularly known as a “no-fault divorce.”
  • Cruelty: A spouse can file for divorce in Texas on the grounds that the other spouse treated them so poorly that continuing the marriage is no longer feasible.
  • Adultery: If one spouse can prove the other spouse was unfaithful during the marriage or separation, they can file for divorce on the grounds of adultery.
  • Conviction for a Felony:
    Conviction of a felony leading to one year in prison provides valid grounds for divorce.
  • Abandonment: If a spouse leaves their marital home without intent to return, does not communicate with the other spouse after leaving, and does not contribute financially to the marriage, the other spouse can file for divorce on the grounds of abandonment.
  • Living Apart: In Texas, a couple can divorce if they’ve lived apart without marital relations for three years.
  • Confinement in a Mental Hospital: A spouse’s three-year confinement in a mental hospital allows the other spouse to seek divorce. This is especially applicable if it’s anticipated that the confined spouse’s disorder will hinder their return to regular life.


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Adultery Laws in Texas

It’s vital to know that adultery isn’t a crime, so spouses won’t be jailed for cheating. That said, adultery can affect multiple aspects of a divorce. Here are a few key Texas divorce laws to know, along with some information on how adultery might affect these laws:

  • Division of Marital Assets: Under Texas law, most property that either spouse acquires during a marriage is “community property,” meaning both spouses have equal ownership of the assets. The law says judges must divide shared marital property in a way that’s “just and right,” which typically means a roughly equal split. However, if one spouse committed adultery, the courts might award the other spouse a larger share of the couple’s community property.
  • Child Custody: While the law says the courts must make custody decisions based on the child’s best interests, adultery can play a significant role in these decisions. Courts usually favor shared parental decisions post-divorce; infidelity doesn’t inherently define a parent’s capability. However, if the spouse neglects the child for a new relationship, they might not be fit to raise them. Furthermore, children are sometimes allowed to express a preference in custody matters. It is likely that a child might not want to live with a cheating parent.
  • Child Support: Child support payments in Texas prioritize providing everything necessary for a child’s thriving. Courts consider parental situations while determining the required child support from each spouse. Therefore, instances of adultery might occasionally play a role in shaping a judge’s ruling.
  • Spousal Maintenance (Alimony): The Texas Family Code permits courts to consider adultery and marital misconduct when deciding alimony payments post-divorce. Proving adultery can increase chances of a higher alimony award.

Evidence Needed to Prove Adultery in Texas

A suspicion of adultery is not enough to prove your case when you file for divorce. Some evidence that might help support your claim includes:

  • Text Messages and Emails: Explicit messages between your spouse and their lover can be strong adultery evidence.
  • Phone Records: Any records showing frequent, lengthy phone calls, especially at odd hours, may provide evidence of an ongoing affair.
  • Social Media Activity: Flirtatious public posts or comments can indicate an affair. Direct messages exchanged on social media platforms can also help substantiate a claim of adultery.
  • Photographs and Videos: Visual evidence of a spouse in compromising situations can strongly impact a divorce.
  • Financial Records: Unexplained expenses, hotel bookings, extravagant gifts, or trips that could be evidence of adultery.
  • Witness Testimony: Friends, family, or colleagues who can testify about the adulterous behavior can provide robust evidence in court.
  • Private Investigator Reports: In some cases, people hire private investigators to collect evidence of a spouse’s infidelity. You can use these reports in court if the investigator collected the evidence legally and ethically.
  • Surveillance Footage: Videos from security cameras can provide evidence of adultery. However, it’s essential that you or your legal team obtain the footage legally.
  • Physical Evidence: You can use gifts, love letters, or other tangible items from the person in the affair as evidence.
  • GPS Logs and Travel Records: Evidence of an affair can include records of visits to the alleged lover’s home or relevant locations.

Adultery is a painful betrayal; you can seek justice by holding an unfaithful spouse accountable in divorce. Our team of Texas divorce attorneys at Smith Family Law are here to make this process as painless as we can, and you can call us at (512) 714-2877 or fill out our contact form for a free consultation.

Written by: Smith Family Law

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