Sometimes Fault-Based Divorce Is the Answer

Texas attorney advising a client on fault-based divorce

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Some states have done away with fault-based divorces completely, and other states offer both no-fault and fault-based divorce. Texas offers divorcing couples the option of obtaining either no-fault or fault-based divorces, and their approach offers a blending of the two options in an effort to accommodate varying needs.

While the vast majority of divorces in Texas are no-fault, there are instances when pursuing a fault-based divorce is a better approach. If you’re considering a divorce or have already been served with divorce papers, it’s time to consult with an experienced Killeen divorce attorney.

No-Fault Divorce in Texas

Most couples in Texas pursue no-fault divorces for one of the following reasons:

  • Neither spouse has to prove the other’s wrongdoing.

  • Because neither spouse is accusing the other of wrongdoing, the divorce process tends to be less contentious.

  • No-fault divorces tend to be settled out of court, which makes them less costly, less time-consuming, and less stressful.

If you pursue a fault-based divorce, you can expect it to go to court because your divorcing spouse is very likely to fight the accusation of wrongdoing, which – if proven – is almost certain to affect his or her divorce terms for the worse.

Anyone who no longer wants to be married in Texas can pursue a no-fault divorce that is based on insupportability. Insupportability roughly translates to irreconcilable differences, meaning that neither spouse needs to prove that the other is at fault for the breakup.

Grounds for Fault-Based Divorce in Texas

When an individual seeks a fault-based divorce, it must be based on one of six specific grounds:

  • Adultery, which requires proving that your spouse had a sexual relationship with someone other than you during your marriage – including during any separation prior to divorce

  • Living apart for three years or more, which generally means being unable to find or get in contact with your spouse to obtain a no-fault divorce during this time

  • Abandonment of at least a year, which refers to a spouse who voluntarily leaves the other with the intention of abandoning the relationship

  • Cruelty, which refers to the willful and persistent infliction of mental or physical suffering but can also reference a single incident of cruelty that is especially egregious

  • Felony conviction, which refers to a spouse who is convicted of a felony during the marriage and, as a result, spends at least a year in prison

  • Confinement to a mental facility, which refers to a spouse who has spent at least three years in confinement for a mental disorder that is unlikely to improve substantially

Obtaining a fault-based divorce can significantly affect the division of your marital property and, in some instances, your child custody arrangements. In other words, it’s important to balance the outcome of a fault-based divorce with the challenges associated.

Considering the Pros and Cons of No-Fault Divorce

The no-fault divorce option is a more direct route toward divorce that can save time and money while reducing – at least theoretically – conflict. There are, however, instances when the no-fault approach is less than ideal. Consider the following pros and cons of a no-fault divorce:

  • No-fault divorce takes a more amicable approach to divorce, but critics argue that it undermines the commitment inherent to marriage.

  • No-fault divorce streamlines the divorce process, but it can allow personal responsibility to take a back seat.

  • No-fault divorce reduces the court’s burden, but it does little to encourage reconciliation options.

  • No-fault divorce encourages collaboration on divorce terms, but the matter of fault can slip through the cracks and go unaddressed.

Seeking a no-fault divorce for the sake of expediency can be a great option, but if your marriage is ending due to your spouse's wrongdoing, a fault-based divorce can better protect your rights. Only you know what’s right for you, and a seasoned Killeen divorce attorney will help you better understand your options and determine your best path forward.

It’s also worth noting that you may gain considerable peace of mind from identifying your spouse’s fault in the dissolution of your marriage. Marriage is, after all, a commitment, and seeking a divorce that is based on your spouse’s failure in this arena can give you needed closure.

Domestic Abuse and Divorce

While domestic abuse often qualifies as cruelty that supports a fault-based divorce, this may not be a safe option. Victims of domestic violence are never more vulnerable to life-threatening abuse than when they’re attempting to leave, and a fault-based divorce tends to drag the process out – giving the accused more time and more motivation to strike back.

No-fault divorce generally provides the swiftest – and, therefore, the safest – exit, and prioritizing your safety is always advised. If you find yourself in this difficult position, your and your children’s safety should be your first concern. Consulting with a dedicated Killeen divorce attorney with significant experience navigating this treacherous terrain is an important first step.

What Are the Advantages of Fault-Based Divorce?

If you’ve suffered as a result of your spouse’s wrongdoing, you may wonder why you would go to the trouble of seeking a fault-based divorce when you know that it’s more challenging. However, if your spouse caused you to suffer, identifying the wrongdoing in pursuit of more favorable divorce terms can make a fault-based divorce well worth the effort.

The Terms of Your Divorce

A fault-based divorce can directly affect your divorce terms, which can directly affect your future. Better understanding each divorce term in relation to fault can leave you better prepared to make the right decisions for you.

The Division of Marital Property

The assets you, your spouse, and both of you together acquired over the course of your marriage are considered marital property. In Texas, these assets must be divided between both parties in a manner that is considered just and right in the event of a divorce. While this just and right – or fair – division can mean an equal division, it can sometimes be more uneven.

Texas takes the circumstances of the marriage and divorce into consideration when determining a fair division of marital property, and wrongdoing can significantly sway the outcome.

However, wrongdoing can – in some circumstances – also affect the division of your marital property in a no-fault divorce. For example, if your spouse was spending an inordinate amount of money on the object of an affair, it affected your marital assets and can, therefore, affect how the court divides those assets in divorce.

When it comes to determining the right course of action for you, you’ll need to balance the financial and emotional cost of seeking a fault-based divorce with its financial and emotional advantages.

Child Custody Arrangements

Texas considers child custody in terms of both legal and physical custody, and legal custody determines how you and your ex will address primary parenting concerns moving forward, including decisions about the following matters:

  • Your children’s schooling

  • Your children’s healthcare

  • Your children’s extracurriculars

  • Your children’s religious upbringing

Legal custody can be sole or joint. When custody is joint, one parent is sometimes granted the authority to break a tie when collaborative efforts fail.

Physical custody, on the other hand, sets the schedule by which you and your ex will divide your time with your shared children. One parent may become the primary custodial parent who has the kids the majority of the time, or you may divide this time more evenly.

While your spouse’s adultery may not affect your child custody arrangements, many other forms of fault can have a direct impact. Your spouse’s cruelty toward you can obviously affect your children’s well-being, which means it can directly affect the amount of parenting time your ex receives. It can also affect his or her legal custody.

If your spouse is having an affair with someone who is deemed unsuitable for your children, adultery could affect your spouse’s parenting time schedule.

If you seek a divorce that’s based on abandonment, cruelty, felony conviction, living apart, or confinement to a mental institution, your spouse’s parenting time can be seriously curtailed – or eliminated altogether under very serious circumstances.


Alimony only applies when one spouse is left without the resources to address his or her own reasonable needs while the other has the financial means to help. In other words, alimony is based on highly specific circumstances, but it’s important to recognize that fault can play a pivotal role in divorces that would otherwise support alimony.

For example, in a divorce based on adultery, the spouse proven to be at fault forfeits the right to alimony – even if he or she would otherwise have qualified. Further, the at-fault spouse can experience a heightened alimony responsibility in a divorce that’s predicated on his or her adultery.

Texas courts take a range of factors into consideration when calculating alimony, and adultery and other forms of wrongdoing are included.

Child Support

Whether your divorce is fault based or no fault, your child support terms are unlikely to be affected – other than in relation to parenting time. If you obtain a fault-based divorce that limits your ex’s parenting time, it puts you in the position of the primary custodial parent, which means you’ll very likely be the child support recipient.

Generally, parenting time and income are determinative when it comes to who pays child support, and the higher earner typically has this responsibility.

FAQ about Fault-Based Divorce

Consider the answers to the most frequently asked questions in relation to your own concerns about whether a fault-based divorce is right for you.

Is Texas a Fault-Based Divorce State?

Texas offers both fault-based and no-fault divorces. While most couples choose the no-fault route, there are circumstances in which pursuing a fault-based divorce is helpful.

Why Are No-Fault Divorces Preferred?

Most couples seek no-fault divorces for all of the following primary reasons:

  • They are less expensive.

  • They are less time-consuming.

  • They can be settled out of court.

  • They are less likely to become contentious, which can benefit everyone involved, including the children.

However, no-fault divorces aren’t always settled out of court, and they have the potential to become long, drawn-out, and very costly affairs.

When Is a Fault-Based Divorce Advised?

Whether you should choose a fault-based or no-fault divorce depends entirely on the circumstances involved and your divorce priorities.

If your divorce is the direct result of your spouse’s wrongdoing and you’re focused on protecting your financial and parental rights in the aftermath, pursuing a fault-based divorce may be advised. If, on the other hand, your spouse is at fault but you’re fully invested in putting the matter behind you as quickly as possible, a no-fault divorce may be the way to go.

A dedicated Killeen divorce attorney can help you make the right choices for you.

How Do I Prove My Spouse’s Fault?

Proving fault in a fault-based divorce is based on evidence. If your spouse was conducting an affair, the only direct evidence may be a confession, but when a confession is not forthcoming, circumstantial evidence will suffice. Evidence can include receipts from hotels and restaurants, sightings of your spouse with the romantic partner, scheduling inconsistencies, phone records, texts, and more.

Call an Experienced Killeen Divorce Attorney Today

Brett Pritchard at The Law Office of Brett H. Pritchard in Killeen, Texas, is a practiced divorce lawyer who recognizes that a fault-based divorce is sometimes a better approach. Mr. Pritchard has the legal insight and skill to help you make the right determinations in your own unique case.

For more information about what we can do for you, please don’t hesitate to reach out and contact us online or call us at (254) 781-4222 to schedule your FREE consultation today.

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