Alienation of Affection Texas
Finding out your spouse has been cheating is devastating. The betrayal cuts deep, and the anger can be overwhelming. When everything you trusted gets shattered, your first instinct might be to make them pay. You want them to face consequences for what they’ve done to your marriage and your family.
If you’re dealing with a cheating spouse in Texas, you’re probably wondering about your legal options. Can you sue your spouse for adultery? What about the person they cheated with? The answer isn’t as straightforward as you might hope, but understanding Texas adultery laws can help you figure out your next steps.
The reality is that Texas handles adultery differently from some other states. While cheating can impact your divorce in essential ways, your options for filing lawsuits are more limited than you might expect.
What Is the Adultery Law in Texas?
Texas adultery laws recognize infidelity as grounds for divorce, but they don’t treat it like a crime. Under the Texas adultery statute found in Texas Family Code § 6.003, you can cite adultery as a fault-based reason for ending your marriage. This means you don’t have to prove that you and your spouse simply grew apart or had “irreconcilable differences.”
Here’s what makes Texas different from many other states: while Texas operates primarily as a “no-fault” divorce state, it still allows fault-based divorces. Adultery is one of several fault grounds you can use, along with things like cruelty, abandonment, or conviction of a felony.
But here’s the important part: adultery isn’t a criminal offense in Texas. Your cheating spouse won’t face jail time or criminal penalties for their infidelity. The police won’t arrest them, and prosecutors won’t file charges. The impact of adultery stays within the family court system, where it can influence your divorce proceedings.
This distinction matters because some people expect adultery to carry criminal consequences. In Texas, it’s strictly a civil matter that affects divorce and family law cases.
Can You Sue Your Spouse or the Person They Cheated With?
This is where things get complicated, and the answer depends on who you want to sue.
Suing the Third Party – Alienation of Affection Texas
Some states used to allow what lawyers call “heartbalm” lawsuits. These included claims for “alienation of affection” and “criminal conversation”; basically, letting you sue the person who interfered with your marriage or had an affair with your spouse.
Texas eliminated these options. The state specifically prohibits alienation of affection in Texas claims. Texas Family Code § 1.107 makes it crystal clear: “a right of action by one spouse against a third party for alienation of affection is not authorized in this state.”
Texas also abolished criminal conversation claims back in 1975. So if you’re thinking about suing your spouse’s affair partner, the “homewrecker,” or anyone else who got involved in your marriage, you can’t. Texas law doesn’t allow it, period.
This might feel unfair, especially when someone actively pursued your spouse or broke up your family. However, Texas has long decided that these types of lawsuits cause more problems than they solve.
Suing Your Spouse Directly
Suing your own spouse for cheating is theoretically possible, but extremely difficult and rarely successful in Texas.
The leading legal theory that might apply is “intentional infliction of emotional distress.” The landmark case of Twyman v. Twyman in 1993 opened the door for this type of lawsuit between spouses. To win this kind of case, you’d have to prove four things:
Your spouse
- Acted intentionally or recklessly
- Their behavior was “extreme and outrageous”
- This conduct caused you emotional distress
- The distress was severe.
Here’s the problem: Texas courts have set an incredibly high bar for what counts as “extreme and outrageous.” Simply having an affair, even if it’s deeply hurtful and devastating to you, usually doesn’t meet this standard.
Here’s the harsh reality: courts in Texas don’t consider regular cheating to be “extreme and outrageous” enough for a successful lawsuit. Your spouse would have had to have done something much worse than just having an affair. Think publicly humiliating you, draining your bank accounts to fund the relationship, or engaging in behavior that goes way beyond typical infidelity.
The painful truth is that even devastating affairs rarely reach the legal threshold for this type of case.
How Cheating Impacts Your Divorce in Texas
Even though you probably can’t sue your spouse for cheating, adultery still matters plenty in divorce court. Texas adultery laws give cheating real consequences where it counts most – in the divorce settlement.
Property Division Gets Affected
Texas is a community property state, which means courts usually split marital assets fifty-fifty. But when adultery is involved, judges can award a larger share of property to the innocent spouse. If your spouse spent marital money on their affair – expensive dinners, hotel rooms, gifts, trips – the court might give you a bigger piece of the pie to balance things out.
The key is proving that marital funds were wasted on the adultery. Credit card statements, bank records, and receipts can all help show where the money went.
Spousal Support Decisions
Adultery can seriously impact alimony in Texas. Courts sometimes reduce or completely deny spousal maintenance to a spouse who committed adultery. If your cheating spouse wants alimony from you, their infidelity might eliminate that possibility.
On the flip side, if you’re the one seeking support, adultery by your spouse might strengthen your case for receiving maintenance payments.
Child Custody Considerations
Texas judges focus on what’s best for the kids, not on punishing parents for cheating. But that doesn’t mean an affair is completely irrelevant to child custody decisions. If the adultery somehow impacts your ability to be a good parent, it might matter.
For example, if your spouse exposed the children to their affair partner inappropriately, brought them around during the relationship, or if the adultery shows poor judgment that might impact parenting, it could affect custody arrangements. Courts also consider the stability of each parent’s home environment.
The adultery itself isn’t the issue; it’s whether the behavior demonstrates something about that parent’s ability to make good decisions for the children.
You Need Solid Evidence
For adultery to impact any of these divorce issues, you need proof. Texas courts don’t just take your word for it. You’ll need evidence like text messages, emails, photos, witness testimony, credit card statements, or other documentation that proves the affair happened.
Private investigators, phone records, and financial documents often become important pieces of evidence in these cases.
What You Can’t Do in Texas
Let’s be clear about your limitations under Texas adultery laws:
You cannot sue the person your spouse cheated with for alienation of affection or any similar claim. You cannot sue your spouse for adultery alone – the affair has to be accompanied by truly extreme and outrageous conduct to support a lawsuit. You cannot expect criminal charges against anyone involved in the affair.
Don’t waste time and money pursuing legal options that simply don’t exist in Texas.
What You Can Do
Here’s where you should focus your energy:
Find an experienced Texas divorce lawyer near you and file for divorce citing adultery as a fault ground, which can give you leverage in negotiations. Gather evidence of the affair, especially financial evidence showing marital funds spent on the adultery. Use the adultery to seek a larger share of marital property and push for favorable spousal support terms. Consider how the affair might impact custody arrangements if children are involved.
Most importantly, work with an experienced Austin divorce attorney who understands how Texas adultery laws actually work in practice.
Get Experienced Legal Help
Dealing with adultery in divorce requires strategy, not just emotion. At Eric M. Willie, P.C., our attorneys have spent over two decades dealing with adultery cases throughout Texas. Every case is different. Sometimes adultery becomes a major factor in the divorce settlement. Other times, it makes less of a difference than people expect. We’ll give you honest advice about what to expect and how to proceed based on your specific circumstances.
Don’t let anger drive your decisions. Let experience guide your strategy. Call us today at 737-260-0366 or complete our online contact form to schedule your consultation.
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