Adultery
Adultery in a Texas divorce

This is another in my Super Simple FAQs series…

What is adultery in Texas?

Adultery is a legal term in Texas that means the voluntary sexual intercourse of a married person with one not the spouse. Texas Family Code § 6.003. Adultery does not have to occur pre-separation for it to be a ground for granting a divorce. In re Marriage of C.A.S. and D.P.S., 405 S.W.3d 373 (Tex. App. Dallas 2013). Even if a relationship with another person begun only after the separation of the spouses, that person may be found to have committed adultery.

Keep in mind that in Texas adultery requires sexual intercourse. Certain sexual encounters that are not specifically intercourse are not legally considered adultery. This marks the distinction between the legal term adultery versus the terms infidelity, cheating, or such. Exchanging sexually charged emails, photos, or texts with another person will not be adultery. Kissing, groping, petting, or even oral sex is not considered legally adultery.

And, adultery does not have to be prior to the separation of the parties, but can include relationships after separation but prior to divorce. In Texas, remember, you are married until you are divorced; there is no legal separation in Texas.

Adultery can cause a divorce to be granted in favor of one spouse or another, as opposed to being granted on no-fault grounds. Determining one party’s fault in the break-up of he marriage can then be used to support a disproportionate division of the community property between the parties. An adultery finding in Texas will not make a spouse eligible for alimony or spousal maintenance. An adultery finding alone will not change the outcome of child custody or conservatorship provisions either. As one judge put it, committing adultery may make you a bad spouse and give a reason for divorce, but it does not necessarily make you a bad parent.

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.