Current Legal Understanding of Adultery in Texas

Unlike many jurisdictions, Texas has statutes that pertain to adultery. However, history shows that these laws are not enforced in practice, and adultery has been addressed as a civil matter in court.
Adultery is specifically addressed in the Texas Penal Code, which states: "Adultery is a defense to prosecution under this section if based upon the sexual conduct of the defendant with the prosecuting witness if: (1) the prosecuting witness was at the time of the conduct . . .." (Former Penal Code Article 1290)
While the above Texas statute appears to clearly state that adultery remains a criminal offense, previous Texas court decisions shed some light on how adultery as a criminal charge has been interpreted in practice .
The historical record indicates that prosecutions of consensual adultery have been quite rare. In the 1977 case of Ex parte Fritz, the Texas Court of Criminal Appeals determined that former statutory law did not create a criminal offense of adultery because "no prohibition against adultery is found in the [Texas Penal] Code." Ex parte Fritz, 540 S.W.2d 793 (1977).
Adultery as a criminal charge has continued to be rare in recent decades. In 1987, the Texas Supreme Court acknowledged that the existence of adultery as a criminal offense was outdated, although it held that the question of whether the law itself should be changed was for the legislature to decide. In re Marriage of Rogers, 650 S.W.2d 498, 500-01 (Tex. 1987). After this case, adultery was no longer a criminal offense under Texas law.

What Effect Does Adultery Have in a Divorce?

The revelation or discovery that one’s spouse has committed adultery can have significant repercussions in the divorce process. In Texas, the implications of adultery can extend beyond the immediate emotional consequences; they can also affect issues related to property division, alimony, and child custody. In terms of property division, adultery may provide grounds for a disproportionate division of the community estate in favor of the innocent spouse. Under Texas law, a court can award parts of the community estate to deny assets to the spouse who has committed adultery. Specifically, courts have discretion to award a greater share of community property to the innocent spouse as a form of division based on "wasteful destruction of community property" under Texas Family Code §7.001(7). This is a highly discretionary remedy and not usually asserted in the context of adultery that occurs on single occasion. The incurring of a debt or other financial obligation for nonmarital purposes placing undue hardship on the other spouse might be more typical. In egregious cases, adultery by a spouse during the marriage may be determined to be "wasteful conduct" under §7.001(10), resulting in a straight reversal or reduction in amounts awarded to the cheating spouse. In separations and divorces of long duration, though, it is a myth that adultery during the course of the marriage (versus the period of separation) will impact property division. Adultery is relevant, though, to some extent in overriding the presumption of equal sharing of community property upon divorce award assets to the non-offending bolstered by the other party’s failing to mitigate assets with spending and use of attorneys’ fees. It is not uncommon for lawyers to advise clients in the early period of separation that they conduct themselves in a manner that does not give an edge, such as abusing drugs and alcohol or compromising credibility by temper and bad behavior with the other spouse. This advice should be taken. A person’s behavior before separation will overlap into separation and divorce issues. In some instances, adultery can also impact alimony or spousal maintenance. Although Texas does not expressly base alimony on any specific grounds related to marital misconduct, family judges review the totality of the circumstances, including infidelity. Thus, a spouse’s extramarital affairs are factors that may support a less favorable spousal support award than would have been made in the absence of such behavior. Child custody determinations can also be influenced by adultery. Texas courts prioritize the best interests of children when making custody decisions. While adultery alone may not necessarily impact child custody determinations, as with alimony or spousal support, adultery may be considered as circumstantial evidence of parental misconduct, which can influence the court’s decision, particularly if it affects the children’s welfare. While adultery may have certain implications in divorce proceedings, it is essential to note that these factors have been diminished and that judges will consider the totality of circumstances in most situations. Adultery is one factor among heirloom jewelry, accounts payable, pensions and retirement accounts, earnings of the parties, the standard of living, and the kids’ needs in determining how assets are to be divided. Further, adultery may have little or no effect upon awarding children to the parties, if there is no substance abuse, criminal activity, or the other behaviors that attached to adultery (acting out, affairs in the home (egregious), and repeated behavior over time). A competent attorney will assist the client to understand the contextual effect of these factors. While adultery may once have had a greater impact upon outcomes, the current Texas no fault divorce law means that it has a diminished effect and that judges consider the totality of circumstances.

The Historical Legal Relevance of Adultery in Texas

Although common knowledge tells us that adultery in a marriage breaks the bonds of trust, intimacy and communication, adultery has also been a legal offense throughout the history of the state of Texas. Satisfying the elements of adultery has always held grave consequences.
As such, adultery has been a crime in Texas since before the American Revolution. The Code of Criminal Procedure, drafted in 1879, included a definition of adultery: "[a married woman’s] sexual intercourse with another person, during the time she is married."
First signed into law by Stephen F. Austin in 1836, adultery was first tried under Anglo law here on January 19, 1878, when one John Grant was tried and convicted for having intercourse with the wife of J.B. Callister. In 1941, the Texas Court of Criminal Appeals upheld a conviction for adultery, and that same year, adultery was added to the state’s Penal Code.
Over the course of the next fifty years, however, the laws on the books began to conflict with prevailing cultural attitudes on marriage, which were more permissive. Precisely because of such conflicts, lawmakers significantly reformed and revised Texas’ adultery laws in 1971, 1989, 1997, 2011 and again in 2017. At each revision, the public’s sentiments towards the institution of marriage and the permissibility of extramarital sex were reflected.
On September 1 of this year, however, a significant change went into effect, one that reflected an even greater refusal of the state to meddle in the marital affairs of its citizens — Chapter 43 of the Penal Code, to wit, the charge of adultery, was completely repealed.
The complete repeal of the adultery statute is likely a reflection of Texas’ gargantuan conservative base, which has long sought to protect the sanctity of marriage, even as many of its members become more tolerant of the relationships of others. The state’s complete repeal of adultery in 2017 means the "crime" of adultery now carries no penalty at all.
Of course, some might wonder what good statutory reforms are if the state is not enforcing the law — and it’s true that enforcement in contemporary times has been largely absent, given that there have been no known prosecutions for adultery anywhere in the country in at least the last decade.

The Moral and Legal Implications of Adultery

When discussing the concept of adultery, it’s important to understand the difference between the moral consequences and the legal consequences. To many, adultery is viewed as a breach of marital vows and therefore a moral failing that can result in harsh emotional consequences, such as the dissolution of a marriage and various forms of harassment from peers. To others, adultery may not be as serious of a moral transgression and the consequences are often far less severe.
With respect to the law, the consequences of adultery are only applicable in the case of divorce or separation. If a spouse files for divorce and is legally separated from their spouse, the moral failures of one spouse with respect to their marital vows are legally irrelevant until the marriage has been formally dissolved through the court system. In many cases, the court may not even consider adultery when it comes to the determination of spousal support , child custody or child support.
Statute 6.003 of the Texas Family Code does define adultery as grounds for divorce, since it does technically constitute a violation of one of the most fundamental aspects of marriage. It is difficult to apply this clause in practice, however, due to the fact that adultery is not always overtly apparent, and it is hard to legally prove outside of confessions from the offending spouse or adultery caught on video.
As such, a judge must generally adhere to the provisions of Title 1 of the Texas Family Code, which governs the dissolution of marriage. The issue of adultery only further complicates divorce or separation, but adultery is not used as a litmus test for eligibility for divorce, as it is one of many possible grounds. Therefore, moral transgressions relating to adultery may have emotional repercussions, but until the dissolution of marriage has been legally finalized, adultery is not a matter of law, per se.

Legal Help for the Wronged Spouse

Victims of adultery are presented with an all too familiar dilemma – how do I pick up the pieces and move on?
If you have been through the trauma of infidelity, it is worth checking out your legal resources for both physical and emotional support. Many people have made tremendous strides in dealing with adultery by sharing their experience or counseling others. There are even online discussion groups and forums that you can join.
One of the best places to go for legal recourse for adultery in Texas is the family courts. A divorce and child custody attorney can help you navigate the process of filing for divorce or pursuing other legal remedies such as TPSALM.
Legal Aid of North West Texas provides free assistance to those in need while the United Way of Metropolitan Houston supports individuals seeking free legal services. The Lone Star Legal Aid Center also helps low income Texans find legal support .
Your local hospital or faith-based organization is another great place to turn for support.
Counseling for victims of adultery is available through professionals, faith-based organizations, and some charities as well. If you need a referral to a therapist specializing in adultery or emotional healing, ask your family court lawyer.
Commonly used approaches to healing from infidelity include:
Support groups for victims of adultery provide a forum in which individuals can address their feelings of loss and betrayal. Some provide therapy with a counselor specializing in infidelity and divorce, while others are informal. Meeting times vary.
Victims of adultery may find additional help through their pastor or members of their church. Alternatively, organizations like Al-Anon Family Groups or the American Association for Marriage & Family Therapy aim to remedy broken marriages and families.