If you are seeking a divorce, you have very personal reasons for doing so. Nevertheless, most divorces in Texas are based on insupportability, which means that the spouses have irreconcilable differences.

Texas does, however, grant divorces that are based on specific grounds, and in some instances, a fault-based divorce is worth pursuing. If you’re facing a divorce, reach out to an experienced divorce attorney near you.

Grounds for Divorce in Texas

The State of Texas recognizes seven distinct grounds for divorce. It’s important to keep in mind that if you’re seeking a divorce based on fault, the burden of proving your spouse’s wrongdoing falls to you. This can make the process that much more challenging.

If your divorce is based on your spouse’s fault, you should expect your case to go to court because it’s unlikely they will agree with your assessment of their behavior. This means your divorce will likely take longer and may be more costly than an uncontested divorce. In other words, you should have a clear objective in mind if you seek a fault-based divorce.

Insupportability

No-fault divorces are based on insupportability. Most divorces in Texas are based on insupportability, and are settled out of court. This means that each applicable divorce term is resolved between the divorcing spouses – with the guidance of their dedicated divorce attorneys.

Adultery

Adultery refers to your spouse cheating on you, which can be difficult to prove if they don’t confess. It’s rare to have proof that someone is having a sexual relationship with someone else, but circumstantial evidence can also suffice.

Having a sexual relationship with someone other than one’s spouse during the divorce process is considered adultery in the State of Texas and can support a fault-based divorce. In Texas, you’re married until your divorce is finalized, and starting a romantic relationship before your divorce is resolved can lead to harsh consequences.

Cruelty

A divorce based on cruelty refers to cruel treatment that makes continuing to live together insupportable. This generalized definition ensures that divorces based on cruelty are determined on a case-by-case basis. As such, every divorce that’s predicated on cruelty has its own unique backstory.

Cruelty in this context refers to the purposeful and ongoing infliction of suffering that can be either physical or mental. There are instances, however, when one explosive event or the accumulation of lesser acts of cruelty support a fault-based divorce. Unsuccessfully attempting to reconcile with your divorcing spouse needn’t bar you from asserting cruelty.

Abandonment

For the grounds of abandonment to apply, your spouse must have left you voluntarily – intending to abandon you – and must have stayed away for at least a full year. This generally means that your spouse had no intention of returning to live with you.

If your spouse returns for a night or two during that one year, it could disqualify you from seeking a fault-based divorce, but if your spouse had no intention of continuing to live with you, this brief interruption may have no bearing on the proceedings. Again, each case is considered in relation to the situation at hand.

Felony Conviction

You can seek a fault-based divorce if your spouse is convicted of a felony during your marriage and spends at least one year incarcerated. However, if the case against your spouse was based entirely on your testimony, this option is off the table.

Living Apart

When a couple has lived apart for at least three continuous years – at the time the case goes to trial – the court generally considers it a matter of mutual agreement. However, a divorce based on living apart can affect the division of marital property.

For example, if you haven’t lived with your spouse for at least three years and are unable to locate them to obtain a divorce, the court – under the right circumstances – may award all the marital assets marital assets in your possession to you alone.

Confinement to a Mental Hospital

If your spouse has been declared mentally incompetent, has been confined to a mental hospital for at least three years, and is unlikely to improve, you can seek a divorce on the grounds of confinement to a mental hospital.

However, it’s important to recognize that this statute is designed to help protect the incapacitated spouse’s financial interests in the just and right division of marital property. As such, the court is likely to appoint a guardian ad litem to represent your divorcing spouse’s best interests.

The Cons of Pursuing a Fault-Based Divorce

Whether pursuing a fault-based divorce is the right way to go in your situation will come down to a range of variables that your skilled divorce attorney will help you assess. There are several challenges that it is a good idea to consider, including:

• You can expect your divorce to go to trial.

• You can expect your divorce to be more time-consuming and more expensive than a no-fault divorce.

• You should have fewer expectations of privacy.

• You won’t have decision-making authority over matters that directly affect your future.

Understanding what a fault-based divorce entails is an essential part of the process.

Why a Fault-Based Divorce?

Once you make the difficult decision that you need to call it quits with your spouse, the most streamlined path forward is generally a no-fault divorce that is settled out of court. This gives the two of you the authority to make primary decisions reflecting your financial and parental rights.

If you can prove that your spouse is responsible for the dissolution of your marriage in Texas, it can affect how the court divides your marital property and addresses alimony. In those instances when the fault directly affects your divorcing spouse’s ability to parent, it can also affect your child custody arrangements.

The Division of Marital Property

The assets you and your spouse come to own while you are married – regardless of who purchases what – are considered marital property. In the event of divorce, these assets must be divided fairly between both of you. Fairly here means fair concerning multiple factors like the following:

• Any disparity in earning power between you

• Your age and overall mental and physical health

• The size of your marital estate

• You and your divorcing spouse’s separate estates

• Any gifts either of you made to the other

• Any wasting, giving away, spending down, or otherwise dissipating marital assets before your divorce

• The tax considerations for each of you in relation to a proposed property division

• Any inheritances either of you anticipate

• Whether either of you is at fault for the breakdown of the marriage

• Any other factors the court considers relevant to your case

If your divorce is based on your spouse’s fault, it can directly affect the division of your marital property – in your favor – which is obviously a significant financial consideration. However, it’s important to note that fault can play a role in property division even if the divorce itself is no-fault.

Suppose your spouse wasted marital funds, such as in the process of having an affair or as a means of padding their own pockets. In that case, the court would very likely take this fact into careful consideration during property division – regardless of whether your divorce is fault-based or not.

Alimony

Alimony – or spousal maintenance – is only awarded in a Texas divorce under specific circumstances. Alimony is generally reserved for marriages that lasted at least ten years. Further, the spouse requesting alimony must demonstrate an inability to provide for their own reasonable needs – while the other has the financial means to help.

If you can show need and that your spouse engaged in an act of violence against you or your children in the two years before filing, it supports an alimony ruling.

Adultery

If your divorce is based on your spouse’s adultery, it may bolster your request for alimony. It’s also important to note that a spouse who has committed adultery can be denied alimony based on their wrongdoing. The matter of alimony is determined on a case-by-case basis, and fault can play a primary role.

Factors Considered

The primary factors Texas courts turn to when ruling on alimony include all the following:

• The length of the marriage

• The matter of fault

• Each spouse’s income and financial resources

• Each spouse’s separate assets

• Each spouse’s level of education and employability

• Each spouse’s earning power

• The amount of time necessary for the recipient to gain greater financial independence through education or job training

• The standard of living achieved during the marriage

• The terms of alimony addressed in a valid prenuptial or postnuptial agreement

Child Custody Arrangements

Texas courts base decisions about child custody on the best interests of the involved children. It’s generally believed that children who spend a considerable amount of time with and who foster solid and loving relationships with both parents are better off.

For example, if your spouse is having an affair with someone who represents a risk factor in terms of your children, it could affect the parenting time schedule you’re awarded. If the risk factor involved is considerable, the court can implement parameters regarding the person’s presence during your ex’s parenting time.

The best interest factors that guide child custody determinations in Texas include all the following:

• Each child’s developmental stage and unique needs, including any special needs

• Each parent’s ability and desire to address these needs effectively

• The relationship each parent has forged with each child

• The degree to which each parent has been involved with raising the children to date

• Each parent’s commitment to effective co-parenting and to supporting the other parent’s ongoing relationship with the children

• The preference of each child considered mature enough to participate in the decision-making process

• Whether domestic violence, child abuse, or child neglect is a concern

If your ex has a history of domestic violence, child abuse, or child neglect – whether your divorce is based on fault, such as cruelty, or not – it can directly affect the parenting schedule the court orders.

FAQ

What is the primary reason for divorce in Texas?

Most Texas divorces are based on insupportability, which means they are no-fault divorces in which the spouses claim irreconcilable differences.

Is there any point in seeking a fault-based divorce?

While there is a downside to fault-based divorces, this doesn’t mean they have no valuable role to play. A divorce based on adultery, for example, may better support your financial future. Your seasoned divorce attorney will help you make the right decisions for you.

How do I prove my spouse’s fault in the matter?

Proving your spouse’s fault concerning your divorce will likely come down to the available evidence, and your trusted divorce attorney has the skill and legal insight to build your strongest case.

Call an Experienced Round Rock Divorce Attorney Today

Brett Pritchard atThe Law Office of Brett H. Pritchard in Round Rock, Texas, is a formidable divorce attorney who has the experience and depth of understanding to help you make the right divorce decisions for you. Learn more by contacting or calling us at 254-781-4222 and scheduling your free consultation today.

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