In a “no-fault” state like Texas, neither party has to be blamed for causing the divorce. This greatly helps facilitate divorce settlements and agreements outside of court. According to the Texas Family Code: “the court may grant a divorce without regard to fault if the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.”
Simply put, insupportability means unendurable, insufferable, and intolerable. Insupportability is a “no-fault” ground for divorce in Texas (meaning that a divorce can be granted without proof that one spouse was at fault for the breakup of the marriage). Insupportability is the basis upon which courts grant the vast majority of the divorces in this State.
While the spouse seeking the divorce must prove that the marriage is insupportable, mere conclusory testimony by one spouse (usually in the form of yes / no response to questions from the attorney) that the marriage has become insupportable, and there is no reasonable expectation of reconciliation, is sufficient to support the divorce. There is no requirement to establish the source or nature of the conflict, how long it has lasted, your efforts to fix it, or who is at fault.
There is no legal duty to reconcile in Texas. While there is a provision for counseling in the Family Code, plainly stated, there is really no defense to a petition for divorce based on insupportability – if one person wants to be divorced, there will be a divorce. No matter how much one spouse protests, Texas will not force you to stay married indefinitely against your will.
There are, however, several events that can place a divorce on hold, such as a bankruptcy or pregnancy before the divorce is final. While a bankruptcy stay is in place, the court cannot divide the marital estate, so these issues must wait until after the resolution of the bankruptcy before they are finalized. Because the court must take into account all children of the marriage when granting a divorce, including the unborn child of a woman who becomes pregnant prior to divorce, the divorce will typically not be granted until after the child is born and can be accounted for in the final divorce decree.
Ashley Bowline-Russell, is an associate at O’Neil Attorneys where she demonstrates her passion for family law. She has compassion, understanding and personal attention when it comes to her clients.