How Filing Under the Grounds of Adultery Affects Divorce

Perhaps you’ve already filed for divorce under the grounds of adultery or are thinking of doing so. No matter what your case may be, it’s important to weigh the outcomes of filing under this reason. Your life and the lives of your spouse and children will be affected by this decision, so being well-informed about the divorce process when adultery has played a role can help you best decide how to move forward with your case.

Has your spouse cheated? Our McAllen divorce attorneys can guide you during your case.


Adultery is one of the six at fault-based grounds a person can use for divorce in Texas. Alternatively, the other option is to file under insupportability, where a person can claim that they and their spouse no longer want to be married due to irreconcilable differences, regardless if one of them has cheated or not.

Texas Family Code Section 6.003 states, “The court may grant a divorce in favor of one spouse if the other spouse has committed adultery.”

What is adultery exactly? Adultery is defined as someone voluntarily having sexual intercourse with someone other than his or her spouse. This, however, may be difficult to prove in court, which is why a judge will accept other forms of evidence.


Collecting proof that a spouse has cheated can be troublesome. And simply having a “feeling” that a spouse cheated is not enough to prove to a judge that an affair took place.

Having direct evidence, such as an eyewitness account, can be rare, but a private investigator may be hired to take photos or video of the sexual act between a spouse and their lover. Hiring a private investigator, though, does come with its costs and fees.

Even if a person does not have hard proof that their spouse cheated on them, they can still prove adultery using other methods. They may use indirect, or circumstantial, evidence to prove that their spouse was in a position where he/she could have committed adultery (i.e. they were alone with the other person) or that their spouse would have cheated on them if the opportunity presented itself. Additional evidence that can be used as proof includes:

  • Travel or hotel booking records
  • Bank statements
  • Credit card receipts
  • Phone call records
  • Text messages
  • Email messages
  • Love letters

Any other forms of evidence that suggest there is an intimate relationship between a spouse and someone else can also potentially be used to prove adultery in a court. However, the filing spouse should be careful not to break any laws when gathering proof. The attorneys at Barrera Sanchez & Associates, P.C. can further help you identify which evidence you may use and how to legally obtain it.

Assets and Children

If a person can prove that their spouse cheated on them, and the court rules in their favor, there may be some greater outcomes for them. For example, in a divorce settlement, the filing spouse can request more community property, which is any income, assets or property that were acquired during the marriage.

When it comes to awarding alimony, however, Texas courts do not base their decision on the evidence. Alimony is usually awarded if there is proof of domestic violence or if the couple was married for 10 years or more and one spouse cannot support themselves.

When deciding which parent gets custody of a child, courts will decide based on what they think is best. If a person proves that their spouse was unfaithful, this gives them the ability to request a custody order that they think is most beneficial for the child; however, they have to be ready to prove why this is the best course of action.

Pros and Cons

Filing for divorce can be messy, but more so under adultery. There can be various outcomes, depending on one’s personal situation. Benefits that may come with a divorce case where adultery played a role consist of acquiring more property or gaining custody of children.

Filing for divorce under adultery requires a lot of time and money. The process can be more stressful in comparison to other fault-based grounds or filing for insupportability. A spouse filing under this ground must be emotionally, mentally and financially prepared to present a case like this to a court. Thankfully, Barrera Sanchez & Associates, P.C. has experienced divorce lawyers that can help take some of that strain off your shoulders.

Reach Out to Us

Our McAllen divorce lawyers can identify which reason/ground fits best with your divorce case. If you choose to file for divorce under adultery, we can also help you. Call us today at 956.287.7555 to schedule your free consultation.

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