Adultery: The Law in Texas
Can a cheater be sued in Texas?
Does Texas law allow you to sue your spouse for committing adultery? The short answer is: Yes – sort of.
The longer answer is: It depends upon the circumstances.
Does Texas law allow you to sue your spouse’s boyfriend or girlfriend for having an affair with your spouse? Once again, the short answer is: Yes – sort of. And as you might have guessed, the longer answer is: It depends.
First, the background: Before 1987, a suit against the paramour (boyfriend or girlfriend) was possible using the tort of Alienation of Affections (“Alienation”). In 1987, however, Texas amended the Texas Family Code and abolished Alienation as a tort.
Also in 1987, Texas law changed significantly, in that, for the first time, there was no interspousal immunity for torts. One spouse could sue the other for any tortious conduct, whether intentional or not. The problem was, before 1993 there was no Texas case or statute providing a cause of action against one’s spouse for adulterous conduct.
In 1993, the Texas Supreme Court specifically adopted the tort of Intentional Infliction of Emotional Distress – also known as Intentional Infliction of Mental Anguish (“Intentional Infliction”) – in the case of Twyman v. Twyman.
Twyman was a divorce case in which the wife alleged that her husband “‘intentionally and cruelly’ attempted to engage her in ‘deviate sexual acts.’” Following a bench trial in which the wife won on her “emotional distress” claim, the husband appealed.
The Supreme Court stated, “In this case, we decide whether a claim for infliction of emotional distress can be brought in a divorce proceeding” and held “we expressly adopt the tort of intentional infliction of emotional distress, and hold that such a claim can be brought in a divorce proceeding.”
To recover under the tort, a plaintiff must prove the following: (1) the defendant acted intentionally or recklessly; (2) the conduct was extreme and outrageous; (3) the defendant's actions caused the plaintiff emotional distress; and (4) the resulting emotional distress was severe.
Twyman was significant both for its specific adoption of the Intentional Infliction claim, and its added recognition that there was no prohibition on bringing it in a divorce action. Before Twyman, some Texas appellate courts had recognized Intentional Infliction in limited circumstances, but the Houston Fourteenth District had specifically barred its use in divorce cases.
The Twyman Court stated, “The requirements of intent, extreme and outrageous conduct, and severe emotional distress before liability can be established will, we think, strike a proper balance between diverse interests in a free society. That balance, at a minimum, must allow freedom of individual action while providing reasonable opportunity for redress for victims of conduct that is determined to be utterly intolerable in a civilized community.”
Moreover, the court held that there was not a requirement of specific intent, but rather “the factfinder should be permitted to consider whether [the cheater] knew with substantial certainty that his actions would probably cause [the innocent spouse] emotional harm.”
As further clarification, the Court stated that the tort “expressly includes situations in which the actor recklessly inflicts emotional distress” and defined recklessness as those times when one "knows or has reason to know . . . of facts which create a high degree of risk of . . . harm to another, and deliberately proceeds to act, or fails to act, in conscious disregard of, or indifference to that risk."
So, to sue your spouse and his or her boyfriend or girlfriend for their adulterous conduct, first be sure you have the facts to support the claim.
The conduct must be outrageous and extreme. A “simple affair” may not be enough to make out the tort, since “liability for outrageous conduct has been found ‘only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’”
In fact, at least one court has stated that “generally, the case in which outrageous conduct is found is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, 'Outrageous!'"
The requirement that the emotional distress is "severe" means that the distress is so severe that no reasonable person could be expected to endure it without undergoing unreasonable suffering.”
Caselaw is clear that “feelings of anger, depression, and humiliation are not sufficient” to establish severe emotional distress and you “must prove more than mere worry, anxiety, vexation, embarrassment.”
Additionally, the suit may not be maintained if the only damage alleged is to the innocent spouse’s reputation.
While it’s true that a “physical manifestation of the emotional distress is not required,” much of the evidence that has been found to support an Intentional Infliction claim seems to be that of physical manifestation.
For example, in one case, the Texas Supreme Court found that “fear,” “crying spells, emotional outbursts, nausea, stomach disorders, headaches, difficulty in sleeping and eating, stress, anxiety, and depression” were sufficient. Of note, in that case, the plaintiffs all “sought medical treatment” and were all “prescribed medication.” Additionally, “an expert witness testified that each of them suffered from post-traumatic stress disorder.”
In another case, evidence found to be sufficient showed that the plaintiff "experienced a significant degree of clinical depression and anxiety, which channeled into somatic symptoms such as headaches, gastrointestinal difficulties, sleep disturbances, weakness, or fatigue."
Finally, another plaintiff was successful with evidence that he “feared for his life, slept with a pistol, cried in public, and lost his appetite.” (Interestingly, in this case, the husband sued the wife for Intentional Infliction in the context of a divorce because of the wife’s outrageous conduct, including death threats towards husband that were apparently based upon her honest belief that he was having an affair.)
The Fort Worth Court of Appeals has found as insufficient the following evidence in an Intentional Infliction case: a false application for a protective order and conduct that caused the husband to not be “allowed to go to work for almost a week,” not be “allowed to get within two miles of the building where he worked” for a period of time, face threat of job loss, face a “’civil war’ at work because about half of the employees believed [husband] and half believed [wife],” face reprimands at work, deal with people "talking about [him]" at work, losing job advancement opportunities, leaving employment because the workplace became "unacceptable," and feeling like “’everybody’ thought he was a ‘wife beater.’”
The court found that none of the husband’s evidence “describes, explains, or details any severe emotional distress that [he] personally suffered as a result of [wife’s] intentional or reckless extreme and outrageous conduct…rather, all of the relevant evidence describes some event or condition” at the home or workplace.
Additionally, courts have found insufficient evidence of “discomfort,” hurt feelings, and feelings of being “dirty.”
So back to our original questions: Can you sue your spouse and his or her boyfriend or girlfriend for adulterous conduct? The answers: Yes, if the adulterous conduct amounts to Intentional (or Reckless) Infliction of (Severe) Emotional Distress.
If your situation meets this standard, you can bring the suit. As for the question of whether you should bring the suit, that is a topic for another article…or a discussion with an attorney.