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

Sep 02

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

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

Will a cheating spouse be punished in court for their infidelity? Will the infidelity impact your divorce in any way? There is no straightforward ‘yes’ or ‘no’ answer to these questions, but you can begin to predict how the court will treat the infidelity in divorce by examining the five factors below:

  • Proof of infidelity;
  • The involvement of young children;
  • If money was spent on paramour;
  • Whether or not you’re seeking a ‘no-fault’ divorce; and
  • The cheating spouse’s honesty or dishonesty. 

Factor 1: Is There Proof of Adultery?

It is not always easy to prove that your wife or husband is cheating. In Texas, the standard by which you must prove infidelity is by a burden of ‘clear and convincing’ evidence. The Clear and Convincing Evidence Standard is a standard that means that the evidence offered has a high probability for truth. To meet this standard, you will likely require more than mere testimony that your spouse was unfaithful to you during your marriage. Sometimes photos aren’t sufficient either.

For example, a picture posted on Facebook of your wife standing next to a guy doesn’t prove that she is having an extra-marital affair with him. Photos can, however, be useful in proving infidelity (if used in conjunction with other evidence). For example, a photo of your wife kissing another man on the lips or holding their hands can be more damning and may help to prove her infidelity. Finding the person with whom your spouse is cheating is a challenging endeavor, but it is a vital part of the divorce process when infidelity is involved. Not only may the person may be physically difficult to find, but the act of finding them may be emotionally distressing and unpleasant. What if your spouse has been cheating with someone that you thought was just a friend? What if they were one of your friends, a boss, a co-worker, or a high-school sweetheart? The person could even be a stranger that your spouse met online.

If you know who your spouse is cheating with, not only can you find closure, but you can subpoena them to court to testify regarding the affair. To subpoena a person, you must know their full name and a proper address where they can be served. Of course, since this person is your cheating spouse’s lover, there is a chance that they will either lie about the affair or down-play the extent of their relationship. Even if they are not forthright, direct evidence of the affair (such as photos, voice recordings, emails, other witnesses, etc.) and an experienced attorney who can use this evidence can discredit their false testimony. To prepare, some spouses choose to hire private investigators to collect evidence. If you select this method, you must disclose the private investigator to the other side. Consult with your attorney on how to do so.

Factor 2: Are Young Children Involved in the Suit?

Some people think that having children won’t affect divorce proceedings if there is an affair, but 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 a restraining order. Courts tend to aim to shield children from the issues of divorce and realize how having children in the middle of infidelity accusations can negatively impact them. Sometimes protecting the children will also prolong the litigation and can further complicate co-parenting as one spouse is less likely to be willing to compromise outside of court. The next question that a court will ask is if the paramour is a danger to the children. That means that you should be mindful of paramours who have felony criminal records, violent backgrounds or dispositions, or lost custody of their own children.


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

If your divorce involves a large amount of property/assets, you must know if your spouse spent money on their paramour. 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 come from half of the marital estate the cheating spouse would have received.


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

In Texas, a divorce is granted based on reasons or “grounds.” If it is proven that a spouse committed adultery, they could be found at fault for the divorce, and the division of the marital estate and their chances of receiving spousal support may change, especially if they spent community funds. Additionally, even if the spouses were living apart at the time the extra-marital relationship started, Texas does not recognize “legal separation,” so the party who had an affair is said to be still committing adultery.


Factor 5: Was the Cheating Spouse Honest with the Court?

Spouses frequently try to hide their extra-marital affairs, so it should not be surprising that they may also try to hide it from the court and their attorney. Some people are embarrassed by their affair, and others want it to remain secret so they won’t be punished or resented by the community (or court). 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 and you are caught, you could receive an unfavorable outcome in the divorce, lose respect from those that know the truth, and drive a wedge between you and your children or soon-to-be-ex-spouse. You should also consider taking a break from the extra-marital relationship, at least until after you finalize your divorce.



In conclusion, if your spouse is cheating on you, your primary goal will be proving their infidelity to the court. If you are the one that is involved in an outside relationship, be honest and put that relationship on pause until the divorce is final. Either way, consult with an experienced Family Law attorney who can help you develop a case-specific plan of action so you can receive the most favorable outcome possible.

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