Texas Divorce: Understanding No-Fault vs. Fault-Based Grounds

Facing a divorce is one of the most challenging experiences in life.

In Texas, the legal process begins with establishing the grounds for divorce, which is the legally acceptable reason for the marriage to end.

Unlike some states, Texas recognizes both “no-fault” and “fault-based” grounds.

Understanding the difference is crucial as it can impact the complexity of your case and, potentially, the division of marital property.

Most divorces in Texas are granted based on the “no-fault” ground of Insupportability. However, in certain circumstances, alleging a fault-based ground may be beneficial, particularly when seeking a disproportionate share of the community property.

It is essential to consult with a qualified Family Law attorney to determine the right path for your specific situation.

What is the ‘No-Fault’ Ground for Divorce?

The vast majority of Texas divorces are granted on the “no-fault” ground. This simplifies the process because neither spouse has to prove that the other did anything wrong.

Insupportability: The Most Common Ground

• Definition: Insupportability is the no-fault ground for divorce in Texas. It essentially means that the marriage has become unworkable because of a “conflict of personalities” that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.
• What it Means for You: You simply need to state that the marriage cannot continue due to irreconcilable differences. The court will grant the divorce without requiring proof of any misconduct by either spouse.

What Are the Fault-Based Grounds for Divorce in Texas?

While less common, Texas allows for six fault-based grounds for divorce. If you choose to plead one of these, you must be prepared to present evidence to the court to prove the claim.

Adultery

Adultery is one of the most frequently cited fault grounds.

• Definition: Adultery is defined as the voluntary sexual intercourse of a married person with one not the spouse.
• Impact: Proving adultery can influence the court’s decision regarding the division of community property. In cases where the adultery caused the breakup of the marriage, a judge may grant a disproportionate share of the marital assets to the “innocent” spouse.

Cruel Treatment

Cruelty is a broad term that covers a wide range of intolerable behavior.

• Definition: The court may grant a divorce if one spouse is guilty of cruel treatment toward the other to the degree that living together has become insupportable (intolerable). This treatment must be more than simple friction or trivial disagreements.
• Examples: While physical abuse is a clear example, cruel treatment can also include severe emotional abuse, persistent malicious behavior, or financial abuse that makes the marriage unendurable.

Felony Conviction

This ground applies when one spouse has been convicted of a serious crime.

• Requirements: The spouse must have been convicted of a felony, confined in a penal institution for at least one year, and not have been pardoned. The petitioning spouse must also not have cohabited with the convicted spouse after the conviction.

Abandonment

Abandonment refers to one spouse leaving the other with the intent to permanently end the marriage.

• Requirements: The abandoning spouse must have voluntarily left the other and remained away for at least one year, and they must have done so with the intention of abandonment.

Living Separate and Apart

This is a technical fault-based ground for a long-term separation.

• Requirements: The couple must have lived entirely apart, without cohabitation, for at least three years. Unlike some states, Texas does not require a formal “legal separation,” but the separation must be complete. Moving into a separate room in the same house is generally not sufficient.

Confinement in a Mental Hospital

This ground addresses situations involving a spouse’s severe mental health condition.

• Requirements: The spouse must have been confined to a state or private mental hospital for at least three years, and the mental disorder must be so severe that there is little or no expectation that they will recover or be sufficiently adjusted to function in society.

Why Choose a Fault-Based Divorce Over No-Fault?

Given that Insupportability is easier to prove, why would a spouse choose to plead a fault ground like Adultery or Cruelty?

Disproportionate Division of Property

Texas is a community property state, meaning the court generally divides community assets in a just and fair manner, which usually means a 50/50 division.

However, if a fault ground is proven, the court may consider that fault when making the final property division.

If the fault can be shown to have dissipated community assets (e.g., spending community funds on an affair), the court is more likely to award a larger share of the remaining property to the “innocent” spouse.

Psychological and Emotional Acknowledgment

For some individuals, a fault-based divorce provides a sense of justice or acknowledgement of the suffering they endured in the marriage, particularly in cases involving domestic violence or severe abuse.

While this does not directly change the outcome of child-related issues, it can be an important part of the emotional and legal resolution.

Key Requirements Before Filing for Divorce in Texas

Regardless of the grounds you choose, there are two mandatory requirements before a Texas court can grant your Divorce:

1. Residency Requirement: At least one spouse must have been living in the state of Texas for a minimum of six months and in a particular county for at least 90 days.
2. Waiting Period: The law requires a 60-day “cooling-off” period after the Original Petition for Divorce is filed before the judge can sign the Final Decree of Divorce.

Navigating the process of proving fault—or even simply managing a no-fault Divorce—requires sophisticated legal guidance.

An attorney can help you gather the necessary evidence, file the correct pleadings, and fight for a favorable outcome, especially if the case involves complex issues like Custody & Visitations or substantial community property.