Husband cheating on wife

Finding out that your spouse is cheating can be devastating.

Many spouses divorce a cheating husband immediately. For others, cheating may be the last straw or one of many straws in a stack of marital problems.

If you are divorcing a cheating husband, you are not alone. Cheating, or adultery, as it is referred to during legal proceedings, is a factor in up to 40% of U.S. divorce cases each year.

It is very important to know your rights when it comes to divorcing a cheating husband. Adultery is one of seven grounds for divorce in Texas. Here, we will talk about how to prove adultery and how adultery affects your Texas divorce case.

Knowing how a cheating husband (or wife) affects a divorce settlement is the first step to resolving problems and moving on after discovering an extramarital affair.

Divorcing a Cheating Husband—How Do I Prove That My Husband Cheated?

Adultery is voluntary sexual intercourse with a person other than your spouse. If you want to divorce a cheating husband, you do not need direct proof of sex to successfully prove adultery.

However, some proof of an affair is essential if you want to divorce a cheating husband. You can show that your husband cheated using circumstantial evidence such as:

  • Text messages,
  • Emails,
  • Phone records,
  • Credit card and bank statements, and
  • Photos or footage.

You do not necessarily need direct photos or footage of sex. For example, you could use photos of your spouse’s car in someone’s driveway as circumstantial evidence.

Cheating that occurs after you file for divorce may also be used as support for your adultery claim if you can present proof of the type listed above. Texas courts require proof of an affair. Your testimony or a gut feeling alone will not be enough to persuade a court.

Does Adultery Affect Property Division?

When it comes to property division, a cheating husband can affect a divorce settlement. Texas courts factor adultery into their decision of how a couple’s property should be divided after a divorce.

A court may reduce your spouse’s awarded portion of any property acquired during the marriage if the spouse committed adultery or spent money on gifts, vacations, or living expenses for the person with whom they were having an affair.

What About Alimony?

While cheating is not a determining factor in whether your spouse must pay or receive alimony, it does have an impact on alimony awards in Texas. Texas courts require one of the following four specific circumstances to be present to award alimony:

  1. The spouse seeking alimony has a physical or mental disability;
  2. The marriage lasted 10 or more years and one spouse’s earning potential cannot support their basic needs;
  3. The spouse being asked to pay alimony committed acts of domestic violence; or
  4. The spouse seeking alimony cares for a minor child with a disability and therefore cannot work.

If you are entitled to alimony according to the list above and your spouse’s adultery caused you to seek a divorce, the court may award you larger alimony payments. On the flip side, if your spouse is trying to seek alimony from you, the court may deny their claim if you can prove that they were cheating.

Will Child Custody Be Affected When I Divorce a Cheating Husband?

Adultery does not play a role in determining child custody in a divorce. Texas courts decide child custody and visitation based on the best interests of the child. However, if your spouse’s adultery is affecting their parenting ability, a court may factor this into its child custody decision.

In addition, if your spouse continues a relationship with an affair partner who poses a danger to the child, this could impact custody decisions.

What Else Can I Do?

After discovering a cheating spouse, many people want to directly sue the spouse or the affair partner over the affair. Texas courts permit these lawsuits only in rare and extreme situations.

Texas courts no longer permit lawsuits on the grounds that an affair deprived you of your spouse’s affections. You also cannot sue in a non-divorce context purely because the affair occurred.

You can, however, bring a claim of intentional infliction of emotional distress (IIED) in connection with a divorce proceeding. Such a claim can result in a damages award against your spouse or the third party in the affair. 

To bring an IIED claim, you must prove that your spouse and/or the affair partner entered into the affair with malicious intent to cause you harm by destroying your marriage.

You must also prove that you suffered extreme harm beyond hurt feelings, discomfort, and damage to your reputation. IIED claims for adultery are rare and difficult to successfully prove.

Talk to an Attorney

If you are looking to divorce a cheating husband, a skilled divorce attorney can help. You don’t have to handle your divorce proceeding alone. An experienced attorney can help reduce your stress when divorcing a cheating husband. The Law Office of Ben Carrasco is ready to bring its substantial experience in divorce matters to your case.

About the Author
Ben Carrasco is a highly skilled family law attorney based in Austin, Texas, known for his extensive expertise in family law and business litigation. While his primary focus is family law, Ben brings a wealth of experience in litigating diverse business disputes, ranging from breach of contract and collections to business torts, fraud, and real estate matters. In his family law practice, Ben navigates all aspects of the field, including divorce, child custody, support, property division, and more, offering clients expert guidance throughout the litigation process. His legal journey began in complex commercial litigation, initially with a global law firm and later with a prominent Austin-based firm. However, driven by a desire to make a direct impact on people's lives and embrace the human element of the law, Ben transitioned to family law, a decision that has proven to be deeply rewarding. A proud Austin native with roots in California, Ben completed his undergraduate studies at the University of California, Berkeley, before earning his law degree at Stanford Law School, where he excelled in legal writing and served as an associate editor of the Stanford Law and Policy Review.