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Is Dating During Separation or While a Divorce is Pending Considered Adultery?

Nov 29, 2021 | Divorce

Here at the Skillern Firm, our Houston Family Lawyers have been asked this question. We often see instances where two legally married spouses may be separated for a time prior to initiating a divorce proceeding. Or at times the process of a divorce (and it is a process) may be extended and one or both spouses would like to date during separation or while a divorce is still pending. We will attempt to answer the question that is posed by first examining what constitutes “adultery” in the State of Texas.

What is Adultery?

Certainly, most people have an idea of what constitutes adultery. In the State of Texas, while the Texas Family Code does not offer a clearly defined definition of the term “adultery,” we can look to what the common law or what the Court in Texas have defined as the definition of the term “adultery.” One can view numerous blog posts on the internet that cite to Texas Family Code section 6.003 for a definition of adultery. However, that provision of the Texas Family Code does not actually define what adultery is. What it does say we will get to later in this blog post. In Texas, the definition of adultery from a legal standpoint is fairly well settled. Adultery means the “voluntary sexual intercourse of a married person with one not the spouse.” To be considered adultery, it must meet the following criteria:

  • Must be voluntary;
  • Must be sexual intercourse;
  • The actor must be married; and,
  • The act must be with one not the spouse.

Sure, we could go down a rabbit hole of what ifs. What if I am married to two people secretly? What if while legally married, I had sexual intercourse with another who I “married” in heart or in a ceremony on the internet? What if it wasn’t “intercourse?”  However, we won’t discuss these potential questions in today’s blog. You can get a good answer to these questions by reaching out to one of the Houston Family Law Attorneys at Skillern Firm.

What Impact does Adultery have on a Divorce?

Texas Family Code section 6.003, as discussed above, says it best:

“The court may grant a divorce in favor of one spouse if the other spouse has committed adultery.”

One important aspect of this definition is that it contains no limitation on time. That means that it is legally possible for a divorce could be granted in favor of one spouse if the other spouse committed adultery at any point in the marriage. The impact that adultery has on a divorce is that the innocent spouse could be granted an inequitable proportion of the marital estate. In a divorce, the marital estate or community property is divided equally between the parties. This is generally considered to be an even division of the property. However, if the Court finds adultery it could potentially award one of the parties more of the community estate than the other party.

What if we were or are Separated or in the Divorce Process?

One important aspect of the definition of adultery, as discussed above, is that it must involve a “married” person. During a separation, one is still legally married. A separation does not in and of itself end a marriage legally. And while a divorce is pending, the parties are still married under Texas law. As the Courts in Texas have noted: “Adultery is not limited to actions committed before the parties separated.”

From an observational and practical standpoint, there are attorneys who would say that adultery in and of itself as a sole ground for fault in a divorce, has rarely been enough, by itself, to sustain an inequitable division of the community property. However, it does happen, has happened, and can happen.

When you are separated or your divorce has not been finalized, a sexual relationship with another can legally be considered adultery in Texas.

If you are facing a situation that involves adultery on your part or on the part of another – you need to speak with an experienced family lawyer. The lawyers at the Skillern Firm, led by Board Certified Attorney Matthew A. Skillern, can help you navigate this issue and answer any questions that you may have. If you would like to speak to someone about your particular situation, call our office at (713) 229-8855 and speak to one of our experienced family lawyers. We are here to help you as we have helped many others.

* At Skillern Firm, we pride ourselves on the results we have achieved for those we help. We stand ready to assist you with any of your Family Law needs. Contact us today.