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Can I file a Criminal Action Against an Adulterous Spouse in Texas?

If you will simply base it on the movies, TV shows and books, you might think that adultery is as grave a crime as murder.

This is probably the reason why many people have the notion that adultery is a crime, and if your spouse will cheat on you, you can send him to jail. 

What is the real score as far Texas Law is concerned?

Adultery In Texas

In the simplest terms, adultery is not a crime in Texas. If your spouse cheats on you, you cannot send him to jail simply on the grounds of adultery. Your spouse will also not get a criminal record or even pay a fine because he cheated on you. 

It does not mean that adultery will have no consequences under the law in Texas. There are provisions in the state’s legal code that aims to punish adulterous behavior.

One of the most common consequences is that adultery or infidelity is a “fault” in a “fault-based” divorce. In this case, you can file for divorce whether your spouse is agreeable or not. In a fault-based divorce, you can prove the fault, and that would be enough grounds for the judge to grant the divorce in your favor. 

Not all divorces are treated the same. In a fault-based divorce based on adultery, the judgment can be affected. For child custody, the judge may consider adultery in the decision although it is not necessarily a rule. While there should be no direct provision of how adultery affects custody, it could be considered that the affair may have compromised the welfare of the children. 

It may also be a factor in property distribution. Judges may decide from the perspective that a marriage that would have worked well was destroyed by the infidelity. In that case, they could see the cheating spouse as having irresponsible behavior. Also, if the spouse used marital money in the course of the affair, then the judge may factor in those expenses when they decide.

Burden of Proof

Considering the possible consequences, the court would require the petitioner to provide serious proof, like photographs or videos. Now more than ever, these are easy to acquire. Social media or email correspondence, bank statements and credit card purchases can also be presented as pieces of evidence of extra-marital relations.

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Mr. Hutton is a Divorce and Custody Lawyer based out of Round Rock, TX. His background is with child psychology at Arizona State University where he received a B.S. in 2006, and he continued this by working with the Children’s Right’s Clinic at the University of Texas School of Law where he received his J.D. in 2009. Throughout his practice, he has been a strong proponent of utilizing modern technology to improve his practice and the representation of his clients. He currently is the technology chair of CAFA of Travis County and is committed to improving and modernizing the practice of law in Texas. If you have any questions you can contact him at

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