TYSK–Infidelity and Divorce in Texas

By Jennifer Pahlka from Oakland, CA, sfo  [CC BY-SA 2.0], via Wikimedia Commons
The AshleyMadison.com hack and subsequent release of about 30GB of user data claimed at least one very high-profile victim this week: Josh Duggar.  The former FRC Action head’s brand image was already tarnished by his acknowledged inappropriate behavior with his siblings (hence, why his position with the Family Research Council is marked with “former”), and now his acknowledged infidelity brings that image even lower.

(As an aside, generally speaking, whether a person has an affair is pretty much an issue to be dealt with only by that person and that person’s spouse.  However, when a person has made a career on publicly and zealously telling other people that affairs and pornography are evils which must be eradicated, but doesn’t toe the line himself, I think it becomes newsworthy.)

Can You Sue Your Cheating Spouse in Texas?

Infidelity, cheating, adultery, alienation of affection, criminal conversation, whatever you want to call it, used to be a crime in Texas.  (It still is, in fact, in some states; whether those laws would actually be enforced today is another question.)  It also used to be an independent tort which could support a civil cause of action against the wayward spouse.  Since 1997, however, Texas does not have an independent cause of action against someone who strays. See Tex. Fam. Code §§ 1.106 & 1.107.

How About Divorcing Your Cheating Spouse?

Adultery, however, is explicitly listed as a grounds for divorce in Texas.  See Tex. Fam. Code § 6.003 (“The court may grant a divorce in favor of one spouse if the other spouse has committed adultery.”)  Rarely, though, will you see a divorce petition which lists adultery as the reason for the divorce.  This is because Texas allows a divorce without fault when things have become irreconcilable.  See id. § 6.001 (“the court may grant a divorce without regard to fault if the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.”)  With such catch-all language available, there is often little reason to make a spectacle of such proceedings.  In other words, while infidelity indubitably is the cause of many divorces, many parties simply want to get the proceedings over with with as little hassle as possible.

This is not to say that adultery should never be alleged in a petition for divorce.  Adultery, for example, is one of the factors a court will consider when determining whether spousal maintenance should be ordered.  See Tex. Fam. Code § 8.052(10).  It can also affect the division of the community’s property. See id. § 7.001 (“the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.”)  It can also be a factor in determining whether a party has committed a fraud on the community, and if so, whether that will affect the division of the estate.

Not All Affairs End in Divorce

It is also important to note that a great number of relationships have been able to withstand a spouse’s infidelity, and I’m certainly not suggesting that Anna Duggar is going to run out to file divorce papers on Josh Duggar.

If, however, you have questions about your spouse’s infidelity and how it affects you, please contact the Choate Firm to schedule an appointment.