Adultery & Divorce & Texas
By Earl N Jackson
Board Certified
Texas Board of Legal Specialization

Adultery - Affair -Extramarital Relationship: Divorce, in recent times more and more of our clients are having to deal with this issue through their divorce. This page and its' daughter pages were placed within this site in order to get you the information that you need with regards to adulterous affairs during a divorce.

Myths and Facts on Divorce and Adultery

1)    Adultery, pursuant to the Texas Family Code, is a cause and basis for divorce in Texas.

2)    Adultery is not illegal in the sense that it is not a crime against the laws of the State of Texas. Neither you nor your spouse goes to jail because one of you had an extramarital affair.

3)    Adultery is an act of betrayal against a spouse. As such, it will cause untold hurt, pain and anger. Anger will cause the innocent spouse to do all that she or he can do to inflict pain upon the adulterer in a divorce proceeding.

4)    Each Court's approach to adultery is completely different depending upon the temperament of the judge, and the county in which the divorce is proceeding. The following bullet points describe possible scenarios - Judge Apple, Judge Ball and Judge Candy are fictitious. 

• Judge Apple does not care about an adultery issue because that which caused the adultery also caused the divorce. In other words, these people were not getting along (discord and conflict within the marriage) causes both adultery (one spouse seeks the companionship of another) and divorce (one spouse seeks out a lawyer).   A great portion of judges will follow the Judge Apple approach.

• Judge Ball hates adulterers, hates what it does to a marriage, and will immediately remove a child from the adulterer without further ado. There was a judge in Collin County, Texas who has since been diselected that followed this approach. 

• Judge Candy takes a middle ground approach. She wants to know what the status of the marriage was prior to the adultery, whether the parties were separated (separate homes or bedrooms), and whether the adultery is the cause of the breakup of the marriage. If the adultery occurred sometime after separation, or during the divorce, she will not give much weight to it. If the adultery is the cause of the divorce, in other words the parties were happily married and had great plans prior to entry of the outside party, then she will attribute fault and rule in accordance.

In our experience, most judges fall into the Judge Candy category. That is, if marital discord and conflict was the status quo prior to the affair, then not a whole lot of weight will be given to it - especially, if the parties are separated and living apart prior to initiation of divorce proceedings. If all was well with the marriage but the adultery caused the marital discord and conflict, the judge will give great weight to it. They will protect the innocent spouse.

5)    Children and an adulterous parent. If in a custody case where adultery is an issue, you are in jeopardy. If a parent brings their nonmarital partner into the lives of the children such that they know and are aware that one parent and a third party are lovers then that parent has risked possession and custody of the children. If you have a third party relationship, don't bring that person into the children's lives until your relationship is well established and the divorce is concluded.  Sometimes we put an injunction in a divorce decree that prevents the introduction of the children to a new girlfriend/boyfriend until the relationship is well established.

6)    Reconciliation after the affair.  In our professional opinion, a waist of time.  Trust has been breached and is gone.  The affair will be brought up again (the next argument).  Promises of fidelity are empty - the promise of marriage has already been breached.

Adultery Offense and Defense in a Divorce

Innocent Spouse: Get all the information that you can from e-mails, correspondence, credit card statements, long-distance bills, mobile phone, and voice mail. Be aware of criminal penalties associated with Wiretapping, including unlawful interception of e-mail, and breach of computer security. Clear here for more information.

Adulterer Spouse: Protect your communications. Spouses will get passwords, will view accounts electronically, will find out all that they need to know. Don't be stupid. Don't assume anything. See above and below.

1)    E-Mails. If you are an innocent spouse, get all the e-mails (print them out) that you can between your spouse and the paramour. Conversely, if you are the adulterer, change e-mail accounts immediately. Your spouse will find them. Furthermore, do not save e-mails on the hard-drive of your work or personal PC. They can and will be subpoenaed. Case in point, spouse knew social security number and credit card number, she was able to con America Online into providing her the password to husbands account. 

2)    Voice Mail. If you are the innocent spouse, save and record all voice mail between the lovers. Do not intercept electronic communications. Conversely, if you are the adulterer do not leave voice messages. Spouse will find them.

3)    Credit Card Statements. If you are the innocent spouse, examine and obtain all credit card statements. Look for gift items (Victoria's Secrete), motel rooms, travel, and floral shops. One spouse sends to the paramour the "I love you more than anything" message with roses. Spouse got a copy, had it, used it. Conversely, if you are the innocent spouse, don't use the credit cards including company credit cards to make purchases for the girl or boyfriend.

More Divorce & Adultery Information

Affairs & Divorce: Types of Affairs

Affairs & Divorce: Possible Good From an Affair?

Affairs & Divorce: How to Manage Your Partners Affair

Affairs & Divorce: Uncovering Deception

JACKSON : THORTON
Dallas Divorce Lawyers
214-369-7100

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