FAMILY LAWBut it WAS their fault!:
An Analysis of No Fault v. Fault Divorces in Texas

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When a potential new client comes to me to discuss a divorce, they usually have a laundry list of items that their spouse did “wrong” that lead to them to want to file for divorce. Most are frustrated when I tell them that the Texas Family Code only recognizes six reasons to grant a divorce for fault grounds, which are the following:

  1. Cruelty
  2. Adultery
  3. Conviction of a Felony
  4. Abandonment for one year or more
  5. Living Apart without cohabitation for at least three years
  6. Confinement in a Mental Hospital

You will notice that narcissism, emotionally unavailable, nagging, carrying the mental load, workaholic, and disproportionate share of the household labor are not included on that list. So what does that mean for those that want to seek a divorce but none of the “fault” grounds apply?

Texas permits you to file for divorce on “no fault” grounds. This means that you cite irreconcilable differences as the reason for your divorce. When the Judge finally grants your divorce, neither party will hold any blame for the break-up of the marriage (even though you might feel your spouse is 100% to blame). This is the most common type of divorce in Texas. It typically is also the fastest way to get a divorce in Texas, since you are not required to prove anything to be granted a no-fault divorce. You simply have to file a Petition for Divorce with the Court.

On the other hand, if one of the above-listed items applies to your situation and you want to claim the other party is at fault for the end of your marriage, this process will likely take longer to reach a resolution. If you file for a fault divorce in Texas, you are required to prove that your spouse is at fault for the end of your marriage for the reason you asserted. Fault grounds 3-6 do not apply to the majority if the divorce cases that I have seen. The most commonly referenced fault-based divorces involve cruelty and adultery, but do those words mean what we think they do under the law?

Adultery is defined as the voluntary sexual intercourse of a married person with another person who is not the spouse. This means that if you ask the Court to grant a divorce because your spouse has committed adultery, you have to prove they had a sexual relationship with another person. You will notice that “emotional affairs” or “dating” are not included in the definition. Proof of adultery can come in the form of communications, social media, photos, or anything else that helps prove your case, but the proof must establish that adultery was committed during the marriage (which includes after separation).

Cruelty is defined as conduct that renders the couple’s living together insupportable (unendurable, insufferable, and intolerable). This can mean physical abuse, verbal or emotional abuse, or any other conduct that rises above mere disagreements or trifling matters. Like all other fault grounds, the spouse claiming cruelty as the basis for the divorce has to prove that cruelty was committed. This can again be through actual evidence, like a police report documenting physical violence, or circumstantial evidence, like communications, photos, records, etc.

At the end of the day, determining whether to request a no-fault or fault divorce in Texas is a discussion you should have with an experienced family law attorney. Contact us today to schedule a consult!

Are you dealing with an ugly divorce? We can help.

Hanshaw Kennedy Hafen Family Law

1415 Legacy Drive, Suite 350
Frisco, TX 75034
Phone: 972-731-6500
Fax: 972-731-6555

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