Family Law Investigations, Part III: Infidelity

The third installment in our Family Law investigations series discusses the importance of enlisting a licensed investigator to provide admissible evidence to prove infidelity in divorce proceedings. Whether you are an attorney representing clients or you are someone who is representing themselves in family court, the attorney led agents at Bearden Investigative Agency are here to help. 

Is There Proof of Adultery?

If your spouse is cheating on you, your primary goal will be proving their infidelity in court.

There is something completely gut-wrenching about the thought that your spouse could be cheating. Call it sixth-sense or intuition, but when you get that sick feeling that your spouse has been unfaithful, it’s important to get to the bottom of things by obtaining proof. In many states, the standard by which you must prove infidelity is by a burden of “clear and convincing” evidence. A picture of your spouse standing next to someone does not prove infidelity, however a photo or video of an intimate encounter will be more damning.

In some cases, individuals that suspect their spouse of infidelity end up proceeding with a divorce with or without the evidence. If you’ve decided to end your marriage because of suspected infidelity, it is still in your best interest to obtain proof of the affair prior to separating. In many states, the law defines adultery as a married person entering a sexual relationship with someone other than their legal spouse. If the adultery occurred during your marriage and before you filed for divorce, that has the potential to be a major factor in how your divorce is filed and whether you or your spouse are entitled to spousal support. Additionally, when children are involved, proof that a parent engages in behavior that negatively impacts a child’s wellbeing, such as putting the child in contact with a dangerous or unfit partner, could indirectly affect a custody award.

Does Cheating Affect Spousal Support?

Can an extramarital affair affect spousal support in a divorce?

If you’ve made the decision to end your marriage because of infidelity, then you might be wondering how adultery fits into the equation of divorce. Will it matter for purposes of the divorce proceedings? More specifically, will a judge be concerned about adultery when determining spousal support?

In most states, the law defines adultery as the “voluntary sexual intercourse of a married person with one not the spouse.”[1]  If proved that adultery occurred during your marriage and before you filed for divorce, a court could potentially award a disproportionate share of the community property. How much? As much as the court determines is a just and right division of the community property.

The law is clear that supported spouses are only entitled to final spousal support if both of the following statements are true:

  • the supported spouse needs support, and
  • the supported spouse committed no-fault grounds or marital misconduct before filing for divorce. [2]

Some courts will prevent spouses from collecting final spousal support if they were at fault for the divorce. In other words, the spouse who commits adultery is potentially not eligible for spousal support.

Although adultery may be proven by direct and circumstantial evidence, clear and positive proof is necessary and mere suggestion and innuendo are insufficient.[3]   Adultery is not determined merely by one party making the assertion, and you can’t use evidence outside of trial. Emails and texts seen by one spouse, but not admitted properly in court are insufficient evidence to prove your claim.[4]  

Does Cheating Affect Child Custody?

Can an extramarital affair affect child custody in a divorce?

Adultery is not a factor the court considers when deciding custody and will not impact a final custody determination.[5]  However, the moral fitness of a parent may come into play if it affects the child’s welfare. In such cases, the judge will award custody only after evaluating various factors. If a parent engages in reckless behavior that could negatively impact a child’s wellbeing, such as putting the child in contact with a dangerous or unfit partner, it could indirectly affect a custody award. [6]

What’s the First Step to Prove Infidelity?

While you may be tempted to host your own episode of “cheaters” by going on a stake-out or confronting your spouse in anger, investigating infidelity on your own is not the best option, and in some states is against the law. Remove yourself from the emotional task of proving infidelity by hiring a skilled licensed investigator that will provide you with proof to confirm or deny your suspicions. The attorney-led investigators at Bearden Investigative Agency are knowledgeable about family law so they know what type of evidence is needed and will be admissible in court.

With 50+ years of investigative work, the agents at Bearden Investigative Agency have extensive experience working suspected infidelity cases. We work with numerous individuals as well as many of the top divorce attorneys in Dallas, Houston, and New Orleans areas by providing concrete admissible evidence to benefit our clients. Additionally, our agents are skilled at providing witness testimony in court. Contact an agent today 1.800.943.2670 or email



[1] In re S.A.A., 279 S.W.3d 853, 856 (Tex. App.—Dallas 2009, no pet.); see also Ayala v. Ayala, 387 S.W.3d 721, 733 (Tex. App.—Houston [1st Dist.] 2011, no pet.).

[2] (La. Civ. Code Ann. Art. 111.)

[3] Miller v. Miller, 306 S.W.2d 175, 176 (Tex. Civ. App.—San Antonio 1957, no writ).

[4] Dzierwa v. Cerda, 2014 Tex. App. LEXIS 8518 (Tex. App. San Antonio Aug. 6, 2014).

[5] (La. Rev. Stat. Ann. § 9:315.)

[6] (La. Civ. Code Ann. Art. 134.)