If you are contemplating a divorce, your first question is probably whether you are entitled to one. While celebrity news makes it seem as though divorces are easy to come by, you may be surprised to learn that Texas courts require couples to have a solid reason. To obtain a divorce, you must raise and prove at least one ground for a court to grant the divorce. In fact, the Texas Family Code provides seven grounds for divorce in Texas. The state categorizes these grounds into fault or no-fault divorces. These classifications may be relevant for purposes of division of marital property, an award of spousal maintenance, and to a certain extent, parental fitness. It is important that you speak with a divorce lawyer to know your rights.
What is the Difference Between a Fault and No-fault Divorce?
There is a substantial difference between a fault and no-fault divorce. For starters, a fault divorce typically requires the person seeking the divorce to prove the other party is at-fault somehow. However, in a no-fault divorce, no blame is assigned to either party. The type of divorce you file may have a significant effect on the outcome of your dissolution of marriage. For example, in a fault divorce, a judge may distribute marital assets unequally because of infidelity. On the other hand, no-fault divorces may end up in a 50/50 split of assets no matter the reason.
Texas is one of 33 states that allow for a person seeking a divorce to choose between a fault or no-fault divorce. The type of divorce you are able to file largely depends on the state you live or are eligible to file in. Fortunately, if you are able to file for divorce in Texas you have the option of choosing between a fault or no-fault divorce.
Fault Grounds For Divorce in Texas
A fault divorce requires the person requesting the divorce prove that the other party has done something wrong. There are several that the party filing for the divorce can use to justify ending the union. Divorce courts require the party filing to provide proof that the grounds actually exist. For example, proof can come in the form of testimony from a witness with first-hand knowledge of the spouse’s bad behavior. In other cases, proof can come from documentation collected by a private investigator.
While fault divorces are becoming less common because of the ease of no-fault divorces, they are still an option for Texas couples. These types of divorces are considerably more expensive to obtain. The most common fault grounds include the following:
Cruelty
The grounds for cruelty in Texas are defined as willfully causing pain or suffering to your spouse. This treatment is so bad that it renders the couple living together insupportable. Cruel treatment is a relative term. In fact, each case must be determined on its own facts. For example, one person may believe behaviors to be cruel while another person may not.
In order for a judge to uphold cruelty as a fault, the cruelty needs to be a willful, persistent infliction of unnecessary suffering. The suffering may be mental or physical. However, mere trivial matters or disagreements are not sufficient.
Adultery
Adultery means “the voluntary sexual intercourse of a married person with one not the husband or wife of the offender.” If you have clear and positive proof that your spouse was having an affair, you have grounds for a divorce. You don’t have to go to such lengths as videoing your spouse cheating, but adultery can be proven through circumstantial ways. For example, receipts or bank statements showing purchases of gifts, jewelry, loans, or trips for a lover may be sufficient evidence. However, mere suggestion and innuendo do not suffice.
It is important to note that acts of adultery that occur after you file for divorce and are no longer cohabitating can still support a fault-based judgment against the adulterer. Because of this, it is best to avoid getting into a relationship until the divorce is final.
Felony Criminal Conviction
If your spouse is convicted of a felony then that is grounds for a divorce. A judge will grant your divorce if, during the marriage, your spouse was:
- Convicted of a felony
- Imprisoned for at least one year
- Has not been pardoned.
It doesn’t matter if the felony conviction was a state or federal penitentiary. Notably, if the state’s case against the convicted felon was based on his or her spouse’s testimony, a divorce cannot be granted on these grounds. However, the court may still grant a divorce based on insupportability or cruelty.
Abandonment
A court may grant a divorce on this ground if the other spouse has voluntarily left the complaining spouse. In addition, the spouse must have left with the intention of abandonment and remained away for at least one year. Further, the spouse must have the intention not to return to live with his or her spouse.
The abandonment period must be continuous for a one-year period. For example, if your spouse comes back for a few nights, this could restart the one-year period. However, if the spouse returned home with no intent to continue living together, then a court may still grant a divorce.
Uncommon Grounds
Courts will grant a fault divorce for a number of reasons. Other grounds for divorce may include:
- Alcohol or substance abuse
- Impotency
- Infertility
- Homosexuality (for married heterosexual couples)
- Cultural or religious differences
- Financial backing (when one spouse is unwilling to support the other financially even if he or she has the means to do so)
No-Fault Grounds for Divorce in Texas
Since the late 1960s, no-fault divorces have become increasingly more common over fault divorces. These divorces are often less expensive and take less time—which is why a majority of people opt for them. No-fault divorces do not require the person requesting the divorce to prove that the other party has done something wrong. In many cases, people don’t want the mudslinging that comes along with a fault divorce. In addition, these records may become public record making the most intimate details of your divorce accessible.
The person filing for divorce does not need a reason for the court to grant a no-fault divorce in Texas. However, they still have to show why a court should grant the divorce. Common grounds for no-fault divorce include the following:
Insupportability
A court may grant a divorce without regard to fault. One of the ways the court will do that is through insupportability. Insupportability is the common ground for divorce. This ground simply means that the marriage is no longer endurable, insufferable and intolerable.
To qualify under this it must be shown that the marriage has become so insupportable due to the conflict, that the conflict destroys the marriage. Further, there is no reasonable expectation that the parties are getting back together.
Living Apart
A court may grant a divorce without assigning fault to either party if they have been living apart for at least three years. Much like abandonment, the two parties cannot have cohabitated during that time.
Confinement in a Mental Hospital
This ground applies when a spouse has been confined in a mental hospital for at least three years, and it appears that said the mental disorder is of such a degree and nature that either the spouse is not likely to adjust, or is likely to relapse.
Defenses to the Grounds for Divorce in Texas
With the adoption of no-fault divorces, the state of Texas abolished defenses for recrimination and adultery. However, the state still continues to recognize condonation as a defense.
Condonation
Condonation is a defense to the fault grounds above and is the act of forgiving another party. To establish this, the court must find that there is a reasonable expectation of reconciliation requiring forgiveness by the offended party and repentance by the offender.
How The Carlson Law Firm Can Help
Every divorce is unique. This is why it is vital for everyone filing for divorce in Texas to seek help from a qualified family law attorney. No matter what the grounds for divorce in Texas, The Carlson Law Firm understands that this is a difficult situation. This is why we are here to help. If you are considering filing for divorce, don’t hesitate to contact an experienced family attorney at The Carlson Law Firm. Our attorneys have been protecting the rights of families across Central Texas since 1976. We are available 24/7. Contact us today for a free, no-obligation consultation.
