To begin, it should be noted that most divorces in Texas – by a long shot – are no fault, which means that neither spouse alleges that the other caused the marriage to fail. This is generally the preferred approach because it makes for a less costly, less contentious, and less time-consuming divorce.
However, there are instances when seeking a divorce based on your spouse’s wrongdoing is a better path forward. When you work closely with an experienced Round Rock divorce attorney, you’ll have the peace of mind that comes from knowing that you are in good hands and that your financial and parental rights are well protected.
What is a fault-based divorce?
Most divorces in Texas are based on insupportability, which roughly translates to irreconcilable differences and means that neither spouse is accusing the other of causing the dissolution of the marriage. In a fault-based divorce, however, one spouse alleges that the other is responsible for the marriage’s failure.
This spouse must prove the other’s fault in the matter, but when a fault-based divorce is granted, it can directly affect the divorce terms – in favor of the spouse who sought the divorce based on fault.
Are fault-based divorces always resolved in court?
Yes, fault-based divorces are generally resolved in court because you’ll need to prove your spouse’s wrongdoing, and the court will determine how their fault will affect your divorce terms. Unless your spouse chooses to cop to your allegations and accept the hard knocks you impose as a result, your fault-based divorce won’t be resolved outside of court.
What are the grounds for a fault-based divorce in Texas?
The grounds for a fault divorce in Texas fall into several basic categories.
Adultery
If your spouse had a sexual relationship with another person while you were married, it’s adultery, and you can seek a divorce based on this fact. Unless your spouse owns up to their affair, however, it will fall to you to prove the matter, which often comes down to circumstantial evidence, such as:
Eyewitness testimony regarding seeing your spouse with the other person under potentially compromising circumstances
Receipts for hotels, gifts for the other person, dinners out, and beyond
Failing to come home
Going on vacation with the other person
Your own careful observations
An important point that should be made here is that, in Texas, you are married until you are divorced, which means having a sexual relationship with another person in the buildup to your divorce – when you may be living separately – is still adultery. If your spouse moves in with their paramour during your pre-divorce separation, it can be used as evidence of their adultery.
The matter of adultery can directly affect the division of your marital property if your spouse was funneling marital assets into their affair, which isn’t uncommon. The fact of their affair could also affect your child custody arrangements – or parenting time – if the other person they’re involved with isn’t considered appropriate in relation to your children.
Cruelty
In a Texas divorce, cruelty refers to a level of cruel treatment that makes living together insupportable. This is a broad definition that is open to interpretation and is considered on a case-by-case basis.
Generally, to obtain a divorce that is based on cruelty, your spouse’s behavior must have included the willful and persistent infliction of suffering on your part, which can be either physical or emotional. One very serious act of cruelty, such as a physical beating – however – can also support a divorce that’s based on cruelty.
Living Apart and Abandonment
Living apart and abandonment are separate grounds for divorce in Texas, but discussing them together can help you better understand the distinctions. Living apart means that you and your spouse lived separately for at least three consecutive years at the time of your divorce trial. Living apart is less about assigning fault than it is about the matter of property division.
If you’ve lived apart for this long, it speaks to both of you agreeing on the matter. If you seek a divorce based on living apart, the court will likely award you all the assets in your possession — provided that you took the steps to serve your spouse with divorce papers. This may mean serving notice in a newspaper if you have no other way of getting in touch with them.
Abandonment, on the other hand, refers to your spouse voluntarily leaving you with the intention of abandoning you. This intention means your spouse had no plans of ever returning.
For the ground of abandonment to hold, your spouse must have stayed away for at least a year. This means that your spouse didn’t spend a night or two in your home in the meantime, which could disqualify your claim of a full year of abandonment. If, however, it’s clear your spouse had no intention of returning to the marriage, a brief stay may not affect your case.
Confinement to a Mental Hospital
If your spouse is mentally incapacitated and confined to a mental hospital for at least three years as a result – with little hope of improvement – you can seek a divorce that’s based on their confinement.
This ground for a fault-based divorce is designed to also protect the spouse who is mentally incapacitated. Generally, the court will assign this spouse a guardian ad litem who works on their behalf – in support of their best interests, including in relation to a fair division of your marital assets.
Felony Conviction
If your spouse is convicted of a felony during the course of your marriage and is required to spend at least a year behind bars, you can seek a divorce based on that conviction. There is an exception, however, and that is if the prosecution’s case against your spouse was based solely on your testimony. You could still, however, seek a divorce that’s based on any other form of fault that applies, including insupportability.
Which divorce terms will my spouse’s fault affect?
Every divorce case – whether it’s based on fault or is no fault – is unique to the circumstances involved and must be determined on an individualized basis. This said, however, the matter of your spouse’s fault can directly affect the division of marital property in your favor if you’re awarded a divorce that’s based on any of the following grounds:
Adultery
Cruelty
Abandonment
Fraud on the community will also suffice, which refers to your spouse misusing, spending down, giving away, hiding, or otherwise dissipating marital funds.
In Texas, an uneven distribution of assets is allowed when the circumstances support it – the way they can in a fault-based divorce. Adultery can also directly affect whether you receive spousal maintenance and the amount – in your favor. When the circumstances are right, fault can also affect child custody, which is always based on the children’s best interests.
Can I file for a fault-based divorce in Texas?
If you meet the residency requirements for a Texas divorce and you can prove that your spouse’s actions qualify under the state’s grounds for fault-based divorce, you can proceed with filing for a divorce that’s based on your spouse’s fault. The residency requirements that apply include the following:
You or your spouse has lived in Texas for at least six months.
You or your spouse has lived in the county in which you file for at least three months.
Divorce is a complex legal matter, and a fault-based divorce is even more so. In other words, you need a practiced divorce attorney on your side from the start.
Should I seek a fault-based divorce?
Whether you should seek a fault-based divorce or not is a very personal decision, and you’ll want to do some soul-searching before you proceed. To begin, you should know that in some circumstances, fault can affect the terms of your divorce, even in a no fault case.
In a fault-based divorce, however, the matter of your spouse’s wrongdoing is of primary concern, which may suit your circumstances better.
Some divorcing spouses find solace in the validation of a fault-based divorce, and if that is important to you, it’s something to consider. Divorce is an emotional journey in the best of times, and when the divorce is based on wrongdoing, it’s important to consider your own feelings and what matters to you.
While choosing to pursue a fault-based divorce is your decision, your seasoned divorce attorney will help ensure that you make the right choice for you, given your unique situation.
How will obtaining a fault-based divorce affect our co-parenting?
Your spouse undoubtedly doesn't like being identified as the bad guy in your divorce, but bending over backward to spare their feelings isn’t your responsibility. You should do what’s right for you, given your unique circumstances and under the careful legal guidance of your attorney, and if that means seeking a fault-based divorce, so be it.
Effective co-parenting is in the best interests of your children, and if your divorcing spouse is going to hold the fault-based divorce against you by thwarting your co-parenting efforts, it can backfire spectacularly.
The court is motivated by your children’s best interests, and if your ex refuses to faithfully participate in upholding their best interests, it can directly affect their parenting time schedule.
When is a fault-based divorce a bad idea?
As mentioned, every divorce must be considered in relation to the unique circumstances that apply, but there are important considerations to keep in mind that come down in favor of no fault divorce, including all the following:
The process tends to be less time-consuming.
The process tends to be less expensive.
The process is generally less contentious, which can translate to a better post-divorce relationship.
A no-fault divorce can be resolved out of court, which makes it a more private matter – court records are public information.
Determining which type of divorce is right for you will likely come down to balancing the pros and cons of each and making the decision that makes the most sense for you. When it comes to something as significant as divorce, there is no one right answer – you’ll need to do what feels right for you, and your attorney will help to ensure that you have all the information you need to make a well-informed decision.
Can the court require my at-fault spouse to cover my legal fees?
You can request that the court require your divorcing spouse to cover your legal fees in a fault divorce that’s based on your spouse’s wrongdoing. Generally, each spouse is responsible for covering their own legal fees, but if the court determines that your spouse acted in bad faith or that they engaged in vexatious practices, it may require your spouse to cover your legal costs.
Examples of bad faith or vexatiousness include all the following:
The hiding of assets – or any other form of manipulating the marital estate in their favor
Refusing to comply with discovery requests
Refusing to abide by court orders
Intentionally drawing out the process in an effort to cause you financial hardship
Discuss Your Case with an Experienced Round Rock Divorce Attorney Today
Brett Pritchard at The Law Office of Brett H. Pritchard is a formidable Round Rock divorce attorney who appreciates your interest in pursuing a fault-based divorce and will work closely with you throughout the process – from ensuring that it’s the right choice for you to fiercely advocating for favorable terms that honor your parental and financial rights.
Learn more about what we can do to help by contacting or calling us at 254-781-4222 and scheduling your free consultation today.