There are many reasons married couples get divorced. A spouse commits adultery, constant conflict, verbal abuse, physical violence—these are all common reasons. Though it may appear on the outside that a divorce is similar to a breakup of any serious courtship or relationship, courts take the legal separation of marriage very seriously. In Texas, the reason, or basis, for a divorce is imperative to the court’s ruling, and the grounds for filing a divorce in Texas must be established and proven for the divorce to be granted.
There are two different kinds of grounds for filing for divorce in Texas:
- No-fault grounds, which means that neither party necessarily did anything wrong to cause the separation.
- Fault-based grounds, which require that the filing party prove that the other party is at fault for the divorce. While both categories of grounds must be proven, if a fault-based ground is indicated when filing, there may be greater repercussions for the end result of the divorce proceedings.
No-fault grounds for filing for divorce in Texas
According to there are several different types of no-fault grounds for filing a divorce. In Texas courts, the most commonly used basis for granting a divorce is supportability. In order to have the divorce granted under these grounds, the person filing the divorce, or the petitioner, must show proof that:
- the marriage has become insupportable due to discord or personality conflict;
- said discord or conflict has destroyed the legitimate aspects of the relationship; and
- there is no reasonable expectation of reconciliation.
Essentially, insupportability means that a couple is no longer getting along and there is no chance that they will reconcile.
Another no-fault ground for filing a divorce is living apart. This reason requires proof from the petitioner that the spouses have not cohabitated for at least three years.
Lastly, confinement in a mental hospital is a no-fault ground for divorce. The petitioner, if filing under this ground, must show that the other party has been confined in a state or private mental hospital, whether in Texas or another state, for at least three years. Additionally, the petitioner must prove that the kind of mental disorder the other party is suffering from and being treated for is so severe that adjustment is unlikely and relapse is probable.
These three categories of grounds for filing a divorce are recognized by the courts of Texas as no-fault grounds. All three imply that the separation is not necessarily either party’s fault, but that conditions are such that the marriage cannot continue and needs to be ended legally.
Fault-based grounds for filing for divorce in Texas
This category is fairly self-explanatory: the petitioner filing for a divorce believes that the other party is at fault for the breakup. However, for a court to grant the divorce under fault-based grounds, the petitioner must prove the fault of the other party
Cruelty is a common fault-based ground. The petitioner, if claiming cruelty as a basis for divorce, must show that the other party is guilty of cruel treatment toward the petitioner to the extent that living together is insupportable. An example of cruelty grounds would obviously be physical violence enacted by the other spouse toward the petitioner, but other examples could be a spouse yelling and cursing on the phone, exhibiting road rage while the other spouse is present, kicking a pet, or burning the other party’s belongings.
Another fault-based ground for divorce is adultery, the most common fault-based ground, which of course has been depicted dramatically in many different fictional stories, films, and television shows. But it does happen often in real life. If the petitioner is filing for a divorce because of adultery, it must be proven that the other spouse was actually unfaithful. This is not a claim to be taken lightly, as the accused party may experience or exhibit shame, anger, or denial when suspected of committing adultery.
If a spouse is convicted of a felony, the other party may file for a divorce under that fault-based ground. If the petitioner makes this claim, they must prove that the other party:
- has been convicted of a felony;
- has been imprisoned for at least one year; and
- has not been pardoned.
And finally, the fourth fault-based ground a petitioner can claim when filing for a divorce is abandonment. This requires the petitioner to show that the other party both left them with the intention of abandonment and has remained away for at least one year.
A note on “may” vs. “shall”
It’s important to note that even if a petitioner provides enough evidence to show that the above no-fault grounds or fault-based grounds are true, the court still has the discretion to grant the divorce on the basis the petitioner filed under or to not grant the divorce at all. This is why the language in the Texas statute is always “may” and not “shall” – e.g., the court may award the innocent spouse with a larger share of the couple’s property if fault is proven.
Why does fault matter?
A court’s decision to grant a divorce because one party was at fault in the breakup of the marriage is important when dealing with the division of the marital estate. If the petitioner provides enough evidence to show that there was cruelty, adultery, a felony conviction, or abandonment, the court may award the innocent spouse with a larger portion of the marital estate. (Notice the use of “may” in the previous sentence over “shall.”) The marital estate includes shared property or investments like cars, a home, retirement savings, stock, etc.
The Texas Family Code does not grant 50/50 division, only a “just and right” division based on the fault grounds outlined above. The court has significant discretion in awarding property and will likely do so based on whether the divorce was filed as no-fault or fault-based. There have been cases in Texas where the court has been justified in awarding an 80/20 or 90/10 split.
It’s important to recognize and understand the divorce laws and procedures in Texas before considering filing for a divorce.
Ali Walker is an attorney at the Walker Law Firm in El Paso, TX. Prior to joining the firm, Ali was a Law Clerk and Staff Attorney III for the Chief Justice of the Texas Eighth District Court of Appeals. www.epwalkerlaw.com