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Is it still adultery once the divorce has been filed?

San Antonio, TX |

Once we file for divorce, if either of us start seeing other people, does the court consider it adultery? I know it's not final at that point, but it's been filed at least, and there's no chance of reconciliation.

If the courts think it is adultery, is there language we can add to our filing that specifically states we do not care what the other does? I'm concerned that I'll slip up during this process. While she says she doesn't care right now, she'll change her tune to screw me later (and she's the one who asked for the divorce in the first place).

Attorney Answers 4


I don't practice in your state, but as a general matter, you aren't divorced until you have a signed order from a judge decreeing you divorced.

You ought to speak with a lawyer in your neck of the woods, I can''t imagine a judge is going to want to see that stipulation in court papers.

Lots of luck to you my friend, this question was definitely good for a chuckle this fine Thursday morning.

Eric Reimer, Esq.
Admitted in NY & NJ
(877) 885 - 8800

Mr. Reimer is licensed to practice law in NJ and NY. His response here is not legal advice and does not create an attorney/ client relationship. The response is in the form of legal education and is intended to provide general information about the matter in question. Many times the questioner may leave out details which would make the reply unsuitable. Mr. Reimer strongly advises the questioner to confer with an attorney in their own state to acquire more information about this issue.

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Well, keep in mind that adultery is no longer a criminal offense in Texas, and hasn't been for many years now, so this is not an issue. Also, while Texas is a no-fault divorce state, it is true that adultery can still be stated as grounds for divorce. However, it is generally only used for assigning "fault" or blame for the breakup of the marriage, and usually only when the wronged party is seeking a disproportionate share of the community assets (i.e., more than 50%). In this instance, if neither of you were seeing other people prior to filing divorce - that is, if the marriage was already broken up due to irreconcilable differences, with no involvement by a "third party" - then it would generally not be an issue there, either.

Now, if there are minor children involved, it is not uncommon for the court to order no cohabitation by either parent with an unrelated adult member of the opposite sex while the children are present in that parent's home (or as we like to call it, a "shack-up clause"), but this is a separate matter and would only be an issue at all if there are children. If there are no children of the marriage, then the court generally does not care with whom either party "cohabits" (and even then, only when the children are actually in the home).

As a common sense matter, once she filed for divorce, she implicitly stated that the marriage was over - and she really doesn't have much reason to care what you do after that point. That is how most judges will probably see it. All the same, if you do choose to start dating while the divorce is still in process, you might want to be discrete. Best of luck!

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1 comment

Don F. Richardson

Don F. Richardson


I will add that, until the divorce is final, you are still legally married, and it would be best to behave accordingly. However, I assume that you were seeking legal, rather than moral, advice. If you were seeking the latter, you should ask your clergyman.


Yes, you are still married.

J Charles Ferrari Eng & Nishimura 213.622.2255 The statement above is general in nature, as not all the facts are known. You should retain an attorney to review all the facts specific to your case in order to receive advise specific to your case. The statement above does not create an attorney/client relationship.

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It is adultery. It is not criminal, but depending on your judge, it can affect the division of community property.

Just don't slip up. Behave, and get your divorce done quickly.

Good luck!!

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