Dallas Bar Association

Adultery and Its Impact on Divorce

by Kelly McClure and Chris Meuse

In his epic poem Don Juan, Lord Byron wrote, “what men call gallantry, and gods adultery, is much more common where the climate’s sultry.” Blame it on that indecent sun or the sweltering temperatures felt this summer, but whatever the reason, Americans are cheating on their spouses in record numbers. A recent study in the Journal of Marriage and Family found that infidelity is the primary cause of approximately half of all divorces, and according to a 2008 USA TODAY/Gallup Poll, 54 percent of Americans know someone who has an unfaithful spouse.

As it is becoming increasingly more common for spouses to engage in extramarital affairs, infidelity is becoming more and more prevalent as an issue in divorce. As such, it is important for the Texas practitioner to know and understand the role adultery plays in the divorce process.

Although a divorce may be decreed in Texas without assigning fault to one party, the Texas Family Code provides that adultery may be a fault ground for divorce. TFC § 6.003. “Adultery,” as used in a divorce proceeding, means the voluntary sexual intercourse of a married person with one not the husband or wife of the offender. Adultery is not limited to acts committed before the separation of the parties.

To prove adultery, direct and circumstantial evidence may be used, but clear and positive proof is necessary.Mere suggestion and innuendo of an affair during the marriage are insufficient.Therefore, a party will likely be unsuccessful in a claim of adultery if the only evidence offered is a hunch or feeling that the other spouse is engaged in a sexual relationship outside the marriage. Therefore, if a party suspects that their spouse is committing adultery, it is important for him or her to collect as much evidence supporting the suspicion as possible.

Any evidence that goes towards proving that the opposing party had an opportunity and proclivity to commit adultery should be gathered early in a case. Emails, text messages, telephone records, credit card and bank statements, or any information to which the innocent party has equal access, may be useful in proving adultery. Additionally, with the advent of social networking websites, it is important to gather relevant information, such as photographs or postings, from the offending party’s social networking webpage. Information on these sites could be deleted or restricted, making it more difficult to obtain later, so it is important to collect this information at the earliest possible time.

Besides securing a decree in favor of one spouse on the fault ground of adultery, pleading and/or arguing adultery as the reason for the breakup of a marriage can be used to obtain a disproportionate share of the marital estate. The Texas Family Code also provides that the court must divide a marital estate in a manner that the court deems “just and right.” TFC § 7.001. Fault in the breakup of the marriage and the benefits the innocent spouse would have received from a continuation of the marriage are factors a court may consider in determining a “just and right” division of the marital estate. An  unequal division of marital property, however, may not be used to punish the party at fault in the divorce. Simply proving adultery, therefore, without any other factors listed by the Texas Supreme Court in Murff v. Murff, 615 S.W.2d 696 (Tex. 1981), will not result in an award of a disproportionately greater amount of the community estate to the innocent spouse.

Since courts are not to use an award of a disproportionate share of the estate to punish an adulterous party and because claims of adultery are becoming increasingly more common in the courtroom, it is crucial that the party claiming adultery focuses on how the offending party’s actions broke up the marriage and how the end of the marriage will affect the innocent spouse. To increase a party’s chances of recovering a disproportionate share of the estate, evidence should be presented showing that the adulterous party’s extramarital affair caused the breakup of the marriage and that because of the breakup, the innocent spouse will be deprived of benefits that would have been received had the marriage continued or that the adulterous affair resulted in a waste of community assets by any grossly excessive gifts made to a paramour.

Adultery certainly can have an impact on divorce proceedings, and infidelity has become an increasingly more common reason for married couples to dissolve their marriage. Therefore, it is important for the Texas practitioner to understand a claim of adultery and its impact on divorce, in case a “Don Juan” walks through the office door. 


Kelly McClure is a board-certified Family Law Practitioner and partner at McClure Law Group, PC. She also is a former Chair of the Family Law Section of the Dallas Bar Association. Chris Meuse is an associate at McClure Law Group, PC who is trained in Collaborative Law and whose practice focuses exclusively on family law matters. They can be reached at kmcclure@mcclure-lawgroup.com and cmeuse@mcclure-lawgroup.com, respectively.

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