Originally published by Evan Hochschild.
It is fairly well known that adultery is grounds for divorce in Texas and can impact how a judge rules in a Texas divorce proceeding. The State’s laws take adultery into account when it comes to the dissolution of the marriage and can call for punitive damages for unfaithful behavior. What is not as well known, however, is whether or not adultery is actually a crime in this State.
Texas Family Code and Adultery
Though adultery does violate certain civil laws that are found in the Texas Family Code, adultery is not a crime in Texas. If you’re wondering how the cheating spouse is held accountable for their actions, there are a number of instances where their feet are held to the fire. Perhaps the most common is in relation to the division of the assets and property that were accumulated during the course of the marriage.
What is Adultery?
Under Texas Family Code section 6.003 adultery is a legal term in Texas that means the voluntary sexual intercourse of a married person with one not the spouse.
Adultery and the Less than 50/50 Split in a Divorce
Texas is a “community property” State where the court will normally divide this marital property 50/50. Where adultery is a factor, a court can award a disproportionate (more than 50% to one spouse) share of the property to the spouse that was cheated on. This occurs with frequency when the unfaithful spouse utilized community funds to facilitate the cheating or when that affair was the main cause of the breakup of the marriage.
Child Custody and Adultery
Adultery in the Texas Family Code DOES NOT:
- make a spouse eligible for alimony or spousal maintenance
- An adultery finding alone will not change the outcome of child custody or conservatorship provisions either.
However, a Judge has a lot of discretion in deciding what is in the “best interest of the child.” Although the adultery itself might not make a difference your new significant other is may make a difference. Our office has on more than one occasion observed a parent who would normally win child custody lose because of who they were dating. This has happened when they decided to date:
- A sex offender
- Someone with a violent past
- Problems with Child Protective Services
- Problems either using or distributing drugs
The specific facts in a divorce case are obviously important to consider. However, what if your new significant other does not have such a torrid past? In this case, then the adultery may not hurt the adulterous partners case. However, if custody could go either way then the adultery might be enough sway a judge to punish the adulterous partner by awarding the faithful spouse more time, access and rights with the children.
How do Other States treat Adultery?
21 States still have laws that make Adultery a crime. In most states adultery is defined as the sexual intercourse between a person who is married with a person other than their spouse. In most states where adultery is still a crime it is a misdemeanor. States where adultery is still a crime include:
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Alabama |
Arizona |
Florida |
Georgia |
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Idaho |
Illinois |
Kansas |
Maryland |
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Massachusetts |
Michigan |
Minnesota |
Mississippi |
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New York |
North Carolina |
North Dakota |
Oklahoma |
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Rhode Island |
South Carolina |
Utah |
Virginia |
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Wisconsin |
However, some states have adultery listed as a felony including:
- Idaho
- Massachusetts
- Michigan
- Oklahoma and
- Wisconsin
Alabama
Under the Alabama Criminal Code adultery has been retained as Class B misdemeanor criminal offense. Under Alabama Code § 13A-13-2, the offense of adultery is committed when a person engages in sexual intercourse with another person who is not his spouse and lives in cohabitation without other person when he or that other person is married.
If prosecuted under this law could be punished by up to six months in jail and fines up to $3,000.In Alabama, there is a one-year statute of limitations for prosecution of adultery and like many other states is almost never is prosecuted.
Arizona
Adultery is considered a class 3 misdemeanor in Arizona under Arizona Revised Statutes, ARS 13-1408. In Arizona, a Class 3 misdemeanors are the least severe class and the maximum penalty is up to 30 days in jail, up to $500 in fines, and up to 1 year of probation.
However, it appears that currently this law is not being enforced. This law got a little attention back in 2012 when a husband Dave Banks tried to get the police to enforce it. According to him his wife had cheated on him 7-8 times. Eventually after much effort he did get the police to call his wife.
Colorado
The Denver post reported on March 22, 2013 that Colorado legislature repealed its anti-adultery law. Also repealed was another law that was rarely used contributing to “sexual immorality” by providing a place, such as a hotel room, for unmarried people to have sex.
Florida
Per Florida statute 798.01, adultery is a second-degree misdemeanor to be Living in Open Adultery:
“Living in open adultery.—Whoever lives in an open state of adultery shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. Where either of the parties living in an open state of adultery is married, both parties so living shall be deemed to be guilty of the offense provided for in this section.”
If prosecuted this could result in up to 60 days in jail and a fine of up to $500.
Georgia
In Georgia adultery is crime according to title 16, chapter 9, section 9 of the Georgia code of criminal conduct, “A married person commits the offense of adultery when he voluntarily has sexual intercourse with a person other than his spouse.
Under Georgia Law adultery is misdemeanor punishable by up to a year in jail and $1,000 fine.
Idaho
Adultery, has been considered a felony in Idaho since 1972. Like many other states, Idaho rarely enforces this law anymore. However, it did gets some attention back 2016 when there were ablations that lawmakers had been caught in an extramarital affair.
If adultery is prosecuted in Idaho a person could spend up to three years in prison and be fined up to $1,000 under Idaho Code Section 18-6601.
Illinois
Under the Illinois Criminal Code section 11-35 adultery is a class A misdemeanor “A person commits adultery when he or she has sexual intercourse with another not his or her spouse, if the behavior is open and notorious, and (1) The person is married and knows the other person involved in such intercourse is not his spouse; or (2) The person is not married and knows that the other person involved in such intercourse is married.
If prosecuted this could result in up to a year in jail and fine of $2,500.
Kansas
Kansas criminal statues define adultery as engaging in sexual intercourse or sodomy with an individual not married to the offender if the offender or the other party is married. Criminal adultery is classified as Class C misdemeanor in Kansas.
Class C misdemeanors in Kansas are the least serious type of offense and are punishable by up to one month in jail and a fine of up to $500.
Maryland
Maryland prohibits adultery and makes it a misdemeanor with a penalty of $10.00.
Massachusetts
In Massachusetts adultery is a Felony under Chapter 272, Section 14 provides that:
A married person who has sexual intercourse with a person not his spouse or an unmarried person who has sexual intercourse with a married person.
If prosecuted and found guilty of adultery in Massachusetts this could result in a punishment of imprisonment in the state prison for not more than three years or in jail for not more than two years or by a fine of not more than five hundred dollars.
The Massachusetts Supreme Judicial Court has noted that the statute has “fallen into a very comprehensive desuetude,”6 it cannot be dismissed as a mere anachronism. Apparently, the last prosecution under this statutes was over 30 years ago in Commonwealth v. Stowell, 389 Mass. 171, 176 (1983).
Michigan
Section 750.30 of the Michigan Compiled laws defines adultery as “the sexual intercourse of 2 persons, either of whom is married to a third person.” In Michigan adultery is a felony-level crime, but it can only be prosecuted if the spouse who is being victimized by the adultery files a criminal complaint within a year of the offense.
In Michigan if prosecuted it is punishable by a maximum sentence of four years in prison and a $5,000 fine.
Minnesota
Minnesota Statute 609.36 defines adultery as “When a married woman has sexual intercourse with a man other than her husband, whether married or not, both are guilty of adultery.
Conviction can result in imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both.
No prosecution shall be commenced under this statute except on complaint of the husband or the wife…after one year from the commission of the offense.
Mississippi
Under the Mississippi Code Section 97-29-1. Adultery and fornication; unlawful cohabitation states that is against the law “If any man and woman shall unlawfully cohabit, whether in adultery or fornication.
If prosecuted they can be fined in any sum not more than five hundred dollars each, and imprisoned in the county jail not more than six months.
New Hampshire
Effective January 1, 2015, adultery is no longer be a crime in New Hampshire. Prior to that adultery was a class B misdemeanor.
New York
Adultery, is still a class B misdemeanor in New York under section 255.17 of the state penal law, punishable by a fine of $500 or 90 days in jail. From my research it appears the law is rarely enforced and only about a dozen people have been charged since the 1970’s.
North Carolina
Of some interest to the readers of this blog is how the State of North Carolina handles situations such as these. North Carolina allows for a claim called alienation of affections. This situation occurs when people are married that is genuine in terms of affection, the affection was destroyed and the reason for it had to due mainly with bad conduct with a person outside the marriage. The faithful spouse, in other words, can file suit against the “other” man or woman. Most states have abandoned these type of legal scenarios but North Carolina operates as an exception.
If you have questions about divorce, adultery or any other family law matter please contact the attorneys with the Law Office of Bryan Fagan. Our team of attorneys is ready to assist you with a listening ear and helpful demeanor during whatever situation you are currently facing in your life.
North Dakota
In North Dakota a married person is guilty of adultery if he or she engages in a sexual act with another person who is not his or her spouse.
No prosecution shall be instituted under this section except on the complaint of the spouse of the alleged offender, and the prosecution shall not be commenced later than one year from commission of the offense.
Adultery is a class A misdemeanor which carries a penalty of up to 1 year in jail and a fine of $2,000.
Oklahoma
Per Oklahoma Statute section 21 871, any person guilty of the crime of adultery shall be guilty of a felony.
Punished can include imprisonment in the state penitentiary not exceeding five years and a fine of $500.
Rhode Island
Rhode Island Chapter 11-6-2 defines adultery as “illicit sexual intercourse between any two (2) persons, where either of them is married, shall be deemed adultery in each.”
The penalty for adultery is a fine not to exceed $500.
South Carolina
In 2016 South Carolina voted and approved repealing laws that criminalized premarital sex, adultery, and seducing a woman with the promise of marriage.
Virginia
Under Virginia Code Section 18.2-365, adultery is defined as crime in which a “married person voluntarily engages in sexual intercourse with a person not his or her spouse.”
Virginia classifies adultery as a Class 4 misdemeanor – the lowest-level criminal offense, with a maximum punishment of a $250 fine. In 2016 attempts were made to repeal this law but met with failure.
Utah
In Utah, adultery is defined as a married person having sexual intercourse voluntarily with someone other than that person’s spouse. Adultery is taken very seriously under Utah law and is a misdemeanor criminal offense.
Adultery is a Class B misdemeanor punishable by up to six months in jail and a fine of up to $1,000.
Wisconsin
In Wisconsin adultery is defined as either “(1) A married person who has sexual intercourse with a person not the married person’s spouse; or (2) A person who has sexual intercourse with a person who is married to another.
Adultery is a Class I Felony punishable by up to two years in the state penitentiary and a fine of $10,000.
Ebook
Other Articles you may be interested in:
- Can I sue my spouse’s mistress in Texas?
- My Spouse Has Accused Me of Adultery in my Texas Divorce and I Haven’t
- When is, Cheating Considered Adultery in a Texas Divorce?
- Sex, Lies, Rock-and-roll, and Adultery in a Texas Divorce
- Can I Sue My Spouse for Mental Abuse in My Texas Divorce?
- 6 things You Need to Know Before You File for Divorce in Texas
- Texas Divorce Morality Clause: Be Careful What You Ask For
- What does Insupportability or No-Fault in a Texas Divorce Mean?
- The Simplified Process for an Uncontested Divorce in Texas
- Explaining the Contested Divorce Process in Texas
Law Office of Bryan Fagan | Houston, Texas Divorce Lawyers
The Law Office of Bryan Fagan routinely handles matters that affect children and families. If you have questions regarding divorce, it’s important to speak with one of our Houston, TX Divorce Lawyers right away to protect your rights.
Our divorce lawyers in Houston TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan handles Divorce cases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
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