While many people refer to Texas as a no-fault state when it comes to divorce, it actually takes more of a hybrid approach that it’s helpful to understand. no-fault divorces became an option in an attempt to make the divorce process less burdensome for those seeking them and to help lighten the court’s load.
While the vast majority of Texas divorces are no-fault, it’s important to understand what this means for you if you’re facing a divorce. The most important step anyone in your position can take is reaching out for the skilled legal guidance of an experienced Round Rock divorce attorney early in the process.
In Texas, You Have Options
The bottom line is that if you want a divorce in Texas, you can obtain one, and you don’t need to prove that your spouse caused the breakdown of your marriage to do so.
No-Fault Divorce
You can seek a divorce that is based on insupportability, which compares to the irreconcilable differences that you’re likely more familiar with. This amounts to a no-fault divorce in which you don’t have to prove anything other than that your marriage isn’t working, which the court will take your word on.
Fault-Based Divorce
You can also, however, seek a fault-based divorce that is based on your spouse’s wrongdoing causing the breakdown of your marriage. While a fault-based divorce can be predicated on a range of factors, the most common are adultery and cruelty.
The burden of proving your spouse’s fault falls directly to you, and when it comes to adultery, you’ll need to show that they are having a sexual relationship with someone other than you, which can be exceptionally challenging if they don’t admit to it.
If you obtain a divorce that is based on your ex’s fault, it can directly affect your divorce terms – in your favor. This includes in relation to your financial rights and potentially in relation to your child custody arrangements.
You can expect a fault-based divorce to take more time, to be more contentious, and to be more costly than a no-fault divorce. This said, however, there are still cases when pursuing a fault-based divorce is advisable.
A Note about Separations prior to Divorce
It’s worth pointing out here that, if you and your divorcing spouse separate while your case is pending the way many divorcing couples do, it’s not a legal separation, and the rules still apply. In other words, if either of you embarks on a sexual relationship with a third party, it qualifies as adultery and could potentially support a fault-based divorce.
No-Fault Does Not Mean Uncontested
Many people confuse no-fault divorces with uncontested divorces, but they are distinct matters. Consider the following:
A no-fault divorce is simply a case in which neither spouse accuses the other of causing the marriage to fail. It can be resolved outside of court, which is an uncontested divorce, or can be resolved at trial, which is a contested divorce.
In a fault-based divorce, the person seeking the divorce must prove their spouse’s wrongdoing, which virtually guarantees the case will go to trial – making it a contested case.
A no-fault divorce is less likely to go to trial than a fault-based divorce is, but if you’re unable to resolve each of the applicable divorce terms outside of court, you’ll need its intervention to finalize your case, which makes your no-fault divorce contested.
While virtually every fault-based divorce is contested, most no-fault divorces are uncontested – unless they end up going to court, which makes them contested.
The Stance Texas Takes
The State of Texas honors every individual’s right to get out of a marriage as quickly and as painlessly – relatively speaking – as possible.
The state also recognizes, however, that some people take a more traditional position regarding marriage and are committed to assigning fault where fault is due. Both approaches ultimately lead to divorce, but the approaches themselves are distinct.
No-Fault Divorce
In a no-fault divorce, you are still tasked with resolving all the divorce terms that apply between yourselves – with the focused legal counsel of your respective divorce attorneys.
This is often a weighty process that can drag on, may become hotly contested, and could end up in court. One thing you won’t need to do, however, is prove your spouse’s fault regarding your failed marriage.
It’s important to note that – even in a no-fault divorce – the matter of fault can have an impact. For example, if your soon-to-be ex spent a significant amount of money in the course of conducting a sexual affair with someone else, it could affect how your marital property is divided.
Further, if your spouse treated you exceptionally cruelly, it can be considered in the best interest factors Texas courts turn to when making child custody determinations. Cruel treatment on their part could limit the amount of parenting time your ex receives.
Fault-Based Divorce
If you are pursuing a fault-based divorce, it’s important to carefully examine your reasoning, and if the pros outweigh the considerable cons, it may be the best fit for you. If your motivation is defending your own honor in relation to your marriage, it is a valid response that might be enough of a reason for you.
In other words, the decision to proceed with a fault-based divorce is very personal, and only you can make it. Your trusted divorce attorney, however, will help you make a well-informed choice that works for you in your unique situation.
No-Fault Divorce and Cruelty
While you can seek a divorce that is based on cruel treatment, doing so can put you at greater risk. This is something of a catch-22 for abused spouses.
While your divorce terms could be improved in response to a fault-based divorce and while a divorce based on fault could support your ability to identify your ex as a threat to you, pursuing a fault-based divorce can leave you vulnerable to further injury.
In a fault-based divorce, you’ll have to face your abuser in court, which can be traumatizing. Additionally, you’re never at greater risk than when you’re attempting to leave an abuser. Someone who is comfortable treating you cruelly – even if they’ve never harmed you physically – could escalate dangerously under the weight of divorce.
Ultimately you and your children’s safety has to come first. Your dedicated divorce attorney will help you strategize the safest exit for you – whatever that means in your unique case.
As mentioned, the fact of your ex’s cruel treatment in your home can affect your child custody arrangements in your favor. And if your divorcing spouse’s cruelty affected your family’s finances, your financial terms can also be impacted.
How No-Fault Divorce Breaks Down
Many people have good things to say about no-fault divorce, and others have issues with the approach. The upside of no-fault divorce generally includes the following factors:
No-fault divorces tend to involve a speedier process that doesn’t become as emotionally heated, and that is typically less expensive.
No-fault divorce offers a streamlined process that doesn’t require either side to prove the other’s fault.
No-fault divorce helps reduce the court’s burden.
No-fault divorce allows anyone who wants a divorce to obtain one.
The downside of no-fault divorce – as some people see it – includes the following factors:
It can weaken the strength of marriages overall.
It can diminish personal responsibility in the context of this primary relationship.
Fault can be lost in the shuffle, and justice may not be served.
It can increase the divorce rate by not prompting couples to explore reconciliation options.
Regardless of your feelings about no-fault divorce, however, they’re a reality in the State of Texas – and, in one form or another, in every state in the nation. If either you or your spouse wants a divorce, it’s your right to seek one – and you’re not required to prove the other’s fault in the process.
A No-Fault Divorce Is No Walk in the Park
While no-fault divorce is designed to make the divorce process less arduous and to speed things along, there is absolutely no guarantee that your no-fault divorce will be smooth sailing.
You and your spouse will need to find a way to resolve each of the divorce terms that apply to your case, and if you’re unable to do so through negotiations or mediation, you will end up in court anyway, which can greatly increase your overall costs.
The Terms of Your Divorce
The terms that you must resolve in a no-fault divorce are exactly the same as they are in a fault-based divorce. Because each of these terms will directly affect either your parental or financial rights, they are all of primary concern.
Your Child Custody Arrangements
In Texas, child custody is addressed in terms of physical and legal custody. Physical custody relates to parenting time, which determines how you and your ex will divide your time with your kids.
Texas courts are invested in the children’s best interests, and as such, the goal is maximizing the amount of time your children will spend with each of you – barring a serious reason for ruling otherwise.
One of you may, however, become the primary custodial parent. This parent has the right to determine where your children make their primary home – within specific parameters set by the court – and will have your children for the majority of their overnights. The non-custodial parent, however, can still expect a generous parenting time schedule.
Legal custody refers to parental responsibilities – or making primary parenting decisions that directly affect how your children are raised. The kinds of decisions involved include all the following:
Which school or daycare your children attend
The medical care your children receive
The extracurriculars your children participate in
The religious upbringing your children receive
You and your ex can share legal custody, which can mean any of the following:
You’ll continue making these important decisions together.
You’ll continue making these important decisions together, but one of you will have the authority to break a tie when necessary.
You’ll divide these decisions between you according to category.
When it’s deemed in the children’s best interests, one parent can be awarded sole legal custody, which means they will make each of these primary decisions on their own.
Child Support
Child support in Texas is based primarily on the amount of time each parent spends with the children and each parent’s overall earnings – although other factors can also play a role. Generally – even if you divide your parenting time right down the middle – the parent with the highest income will have the child support obligation.
The Division of Your Marital Property
Any assets that you and your spouse came to own while you were married – regardless of how you acquired them – belong to both of you with very few exceptions. These assets must be distributed between the two of you fairly upon divorce, which often means equally but doesn’t always.
Factors, such as the size of each spouse’s separate estate, the length of the marriage, and each spouse’ contribution to the marriage can all play a role.
Alimony
Alimony only applies in those Texas divorces that leave one ex without the means to cover their own reasonable needs while the other has the ability to help. Reasonable needs here is in the context of the standard of living achieved during the marriage, which can vary significantly from case to case.
Don’t Wait to Consult with an Experienced Round Rock Divorce Attorney
Brett Pritchard at The Law Office of Brett H. Pritchard is a compassionate Round Rock divorce attorney who takes an individualized approach to every case he handles. Our goal is protecting your financial and parental rights in the right divorce for you – while streamlining the process to the degree possible.
Your case is important to your future, so please don’t wait to contact or call us at 254-781-4222 and schedule a free consultation today.