The Walters Gilbreath, PLLC Blog

Does it Matter to a Court If There is Infidelity in Marriage?

by Raya Jackson on May 22, 2017

Hi, today I want to cover some popular questions that I get all of the time. What about your cheating wife? Will she be punished in court for her infidelity? What about your cheating husband? Will that impact your divorce in any way? In other words, does it matter if there is infidelity in marriage? The honest answer is that it depends. There is no straight-forward 'yes' or 'no' answer to these questions, but you can begin to predict how the court will treat the infidelity in the divorce by examining the 5 Factors Below.


Factor 1 : Is there Proof of Adultery?

The first factor seems pretty easy to understand. However, don't be fooled by it. It is not always easy to prove that your wife or husband is cheating.

Hurdle 1 : You're going to have to figure out how to prove the infidelity.

In Texas Family law, the standard that you must prove the infidelity is by a burden of clear and convincing evidence. That is why your first hurdle will be proving the adultery. The clear and convincing evidence standard is a standard that basically means that the evidence offered has a high probability for truth. In order for this standard to be met, it'll likely take more than your mere testimony of your spouse being unfaithful to you during your marriage. Sometimes photos won't be enough either. For example, just because your wife has a picture standing next to a guy on her Facebook profile, doesn't mean that this proves that she is having an extra-marital affair with him. But on the other hand, photos can be useful to prove infidelity (if used in conjunction with other evidence). For example, if there was a photo of the wife kissing another guy on the lips or holding hands with another person, these pictures could be a lot more damning to her and could help prove her unfaithfulness.

Hurdle 2 : Identify the Person(s) that your Spouse is Cheating With.

This hurdle is not just a hurdle because it may be literally difficult to find out who your spouse is cheating with. This is also a hurdle because finding out who your spouse has been having an extra-marital affair with won't likely be fun or pleasant. What if your spouse has been cheating with someone that you thought was just his/her friend? What if it is with one of your own friends? What if it is with their boss? Co-worker? High-school Sweetheart? It could be someone that they met off of the Internet for all that you know. However, this may be an important battle to fight for closure.

There is another benefit to finding out who your spouse is cheating with : you can subpoena him/her/them to court to testify regarding the affair. In order for you to subpoena a person, you must know their full name and a proper address to where they can be served with a subpoena. Of course since it is your cheating spouse's lover, there is a chance that they will either lie about the affair all together or down-play the extent of their relationship; the best hope is that they are honest about the affair. However, you should not be concerned about this too much if you have some direct evidence of the affair such as photos, voice recordings, emails, other witnesses, etc.; if they are not honest about the affair, your experienced attorney can use this evidence to discredit their testimony.

Quick Tip : Some spouses choose to hire private investigators to get evidence of the infidelity. If you do, you must disclose the private investigator to the other side. Consult with your attorney on how to do so.

Factor 2 : Are there Young Children Involved in the Suit?

Some people think that having children won't further complicate the divorce proceedings if there is an affair. However, if there are young children (typically 13 years old and younger) involved in the suit, the Court may punish the cheating spouse for their infidelity.

The first question that a Court may ask is whether or not the cheating spouse's lover has been in the presence of the children. If they have, especially at the objection or lack of knowledge from the other spouse, the Court may issue sanctions (if in violation of a previous order) or may issue a restraining order in order to alleviate this issue. Courts tend to aim to shield children from the issues involved in the divorce and realize how having children in the middle of the infidelity accusations etc., impact the children in a negative way. Sometimes this will also prolong the litigation and can further complicate co-parenting as one spouse is less likely to be willing to compromise to come to an agreement outside of court.

The next question that a Court will ask is if the paramour or new girl/boyfriend is in any way a danger to the children. That means that you should be mindful of the paramours that have felony criminal records, violent backgrounds or dispositions, or if they've lost custody of their own children.

Factor 3 : Did the Cheating Spouse Spend Money on their Paramour or Mistress?

This is a question that is pretty important to answer if your divorce involves a large amount of property/assets. If your husband or wife has been spending community property (property acquired during the marriage) on their lover (and you can prove it) then you may be entitled to a disproportionate share of the community estate. Imagine that your community/marital property estate is worth $100,000 and your spouse spent $20,000 on miscellaneous gifts, cash withdrawals, and checks written to their lover(s). You know that the $20,000 was spent on that because you can see the specifics in your joint bank account statements, credit card bills, etc. If you present all of this evidence to the court (and meet the standard of proof), the court will reimburse the community estate with $20,000. The money will basically come from the cheating spouse's half of the marital estate (that he/she would have received).

Factor 4 : Are you Seeking a "No-Fault" Divorce?

In Texas, a divorce is granted based on a reason or "grounds" for the divorce. This could impact the division of the marital estate. If it is proven that either spouse committed adultery, they could be found at fault in the break-up of the marriage. This could impact the cheating spouse's chances of receiving spousal support, especially if they spent community funds like in Factor #3. Additionally, even if the spouses were living apart at the time the other relationship started, since Texas does not recognize "legal separation", the party who has an extra-marital affair is said to be still committing adultery.

Factor 5 : Was the Cheating Spouse Honest with the Court About his/her Infidelity?

A lot of times spouses try to hide their extra-marital affairs from the other spouse. So, it should not be surprising that they may try to hide it from the Court and even their own attorney. Some people are embarassed by their affair and others just want it to remain secret so that the community (or court) won't "punish" or resent him/her for it. If you are the spouse that committed adultery, it is vital that you are honest about the affair. If you don't tell the truth regarding the extra-marital affair and you are caught by the Court or your spouse, you could receive an unfavorable outcome in the divorce, you could lose the respect from those people that know the truth, and you can cause a wedge to be put into your relationship with your soon-to-be divorced spouse and/or your children. You should also cease to have this affair, at least until after your divorce is final to avoid some of the issues discussed earlier.


In conclusion, if your spouse is the one that is cheating on you, the most important goal that you should have is proving it to the court. If you are the one that was unfaithful, you should cease your affair until after your divorce is final and be honest about it from the beginning. Either way, you should be sure to consult with an experienced Family Law attorney so that you will receive the most favorable outcome possible, even with infidelity in the midst of all of the issues.

Topics: Divorce Law