Texas Divorce Based on the Ground of Cruelty

Texas couple seeking a divorce based on cruelty

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While most divorces in Texas and throughout the nation are no fault, Texas recognizes divorces that are based on one spouse’s fault, which can include cruelty. The State of Texas appreciates the damage that both mental and physical cruelty can inflict on the victimized spouse, and when cruelty is established as the basis of the divorce, it can directly affect the terms.

If your marriage is ending as a result of your spouse’s cruelty, you shouldn’t wait to consult with an experienced Killeen divorce attorney.

The Difference between No-Fault and Fault-Based Divorce

The vast majority of divorces in Texas are no fault, which means neither spouse claims the dissolution of the marriage was caused by the other’s wrongdoing. In Texas, no-fault divorces are based on insupportability, often referred to as “irreconcilable differences.”

However, if you are seeking a divorce based on fault, the burden of proving your spouse’s wrongdoing is on you, and the bar is high. You’ll need to demonstrate your spouse’s fault to the court clearly.

It’s important to know from the outset that a fault-based divorce will almost certainly go to trial because your spouse is very unlikely to agree with your assessment of fault. As such, you can expect your case to be more costly, time-consuming, and contentious.

If your marriage is ending because of your spouse’s cruelty, you may find that seeking a fault-based divorce is well worth the extra effort. This determination can help you protect your financial and parental rights as well as your peace of mind. If you’re aiming for a fault-based divorce, seek the guidance of a skilled Killeen criminal defense attorney.

Additional Grounds for Divorce in Texas

In addition to insupportability and cruelty, Texas recognizes five distinct grounds for divorce.


In Texas, if you can prove that your spouse cheated on you by having a sexual relationship with someone else, you can seek a divorce that’s based on adultery. In Texas, you are married until you are divorced – even if you and your spouse may have separated in the buildup to divorce. In other words, having a relationship prior to your divorce’s finalization is ill-advised.

If your spouse doesn’t come clean about the affair, it can be difficult to prove, but such matters are generally accomplished with circumstantial evidence, such as the following cues:

  • Unexplained absences

  • A sudden change in behavior or affection

  • Suspicious behaviors

  • Phone logs

  • Copies of electronic correspondence

  • Credit card bills and records of cash withdrawals

It’s important to note that adultery can affect the division of marital property and alimony even if the divorce is no fault. For example, if your spouse engaged in fraud on the marital estate by spending marital assets on an affair, the judge can take this into consideration when making financial determinations.


If your spouse abandons your marriage voluntarily with no intention of returning and has been gone for at least a year, you can seek a divorce based on abandonment. If your spouse returns briefly to your marital home, this event could negate the claim of abandonment, but if there was no intention of returning to the marriage, such a return may not be relevant.

Living Apart

While living apart and abandonment may strike you as the same basis for divorce, they’re distinct from one another. Living apart is based on living separately from one another for at least three years.

While living apart as a matter of mutual agreement may not support a fault-based divorce, seeking a divorce from a spouse you haven’t lived with for years and whom you can’t locate may. In such an example, the court can award you everything in your possession upon divorce as long as you took the necessary steps to locate or notify your spouse.

Felony Conviction

A divorce can also be based on a spouse’s felony conviction. If your spouse is convicted of a felony and spends at least a year behind bars without a pardon while you are married, you can seek a divorce that’s based on a felony conviction. The only exception is if the conviction was based on your testimony.

Confinement to a Mental Hospital

If your spouse has been confined to a mental facility for at least three years and improvement is highly unlikely, you can seek a divorce based on his or her confinement. This law is in place not only as grounds for divorce but also to protect the incapacitated spouse’s interests, such as the fair division of marital assets.

In these circumstances, the court will generally appoint a guardian ad litem to represent the best interests of the confined spouse.


If your spouse is deemed guilty of treating you cruelly to the degree that it makes living together insupportable, you can seek a divorce that’s based on cruelty. While there is no specific definition of what constitutes cruelty in a marriage on the books in Texas, the accepted meaning is the intentional and malicious infliction of emotional or physical pain on a spouse.

Emotional Cruelty

While cruelty can take the form of physical abuse, it can take other forms. Common forms of emotional cruelty include all the following behaviors:

  • Giving the victimized spouse the silent treatment

  • Intimidating the victimized spouse

  • Calling the victimized spouse names

  • Controlling the marital finances

  • Shaming or humiliating the victimized spouse in public

  • Withholding love and affection from the victimized spouse

  • Isolating the victimized spouse from family and friends

  • Insulting, denigrating, or ridiculing the victimized spouse

  • Threatening the victimized spouse with harm

  • Taunting the victimized spouse into self-harm

  • Stalking or harassing the victimized spouse

  • Gaslighting the victimized spouse – or attempting to convince the spouse that his or her memories or perceptions are flawed

  • Infringing on the victimized spouse’s privacy by demanding to know his or her usernames and passwords for electronic devices and online accounts

  • Directing profane, vulgar, or nasty language at the abused spouse

  • Making it a habit to shout at the abused spouse

Every cruel spouse has his or her own brand of cruelty, and if you’re the victim of your spouse’s cruelty, it’s time to reach out for the skilled legal guidance of a dedicated Killeen divorce attorney.

Physical Cruelty

Physical cruelty is less nuanced than emotional cruelty. If your spouse is physically abusive, you’re all too aware of the problem. Unfortunately, those who are victimized by physical abuse in their marriages often experience a good deal of shame along with it, which can stop them from reporting the abuse or even from talking about it with others.

In other words, it can be as difficult to prove physical abuse as it is to prove emotional abuse – and too often, they go hand in hand.

To make matters even more challenging, spouses who engage in cruelty also tend to be master manipulators. This skill often translates to reeling victims back in with apologies and sweet talk before beginning the cycle all over again.

Proving Cruelty

If you seek a divorce that’s based on cruelty, you have the burden of proof. If you’ve been physically abused, it’s in the best interest of your health and well-being to seek medical care as required and alert the authorities. Sharing your concerns with trusted friends and family members is also a good way to help protect yourself and establish proof of your spouse’s cruelty.

If your spouse engages in emotional cruelty, you’ll need to turn to the following kinds of sources to help establish your claim:

  • Voicemails left by your spouse

  • Texts and other forms of electronic messaging between you and your spouse

  • Your own journaling and documentation

  • The testimony of others who’ve witnessed your spouse’s cruelty

  • The testimony of your family members, who likely have a more up close and personal take on your marriage

  • Any medical or mental health records that include references to the abuse you’ve endured

  • Any police records that reflect the abuse you’ve experienced

Your Safety

It’s important to highlight the fact that you are at the greatest risk of being seriously harmed by your abusive spouse when you are preparing to leave. This risk makes prioritizing your own safety and your children’s safety paramount during this challenging time.

Your seasoned Killeen divorce attorney will help you evaluate your unique situation, explore your best options and the resources available to you, and make the best choices for your legal rights and safety going forward.

Affected Divorce Terms

Seeking a divorce based on cruelty can directly affect specific divorce terms.

Child Custody Arrangements

Your spouse’s cruelty toward you could potentially affect the parenting time schedule, but it’s important to consider Texas's stance on child custody arrangements. Texas bases child custody decisions on the best interests of the involved children, beginning with the presumption that children are better off when they are allowed to spend time with each parent.

The court isn’t likely to limit your spouse’s time with the children unless the form of cruelty he or she engaged in puts your children at risk. If your spouse engaged in domestic violence, child abuse, child neglect, or parental alienation, the court may require supervised or shorter visits, but it is unlikely that your spouse will be denied all contact with your children.

Texas courts consider the following kinds of factors when making parenting time decisions:

  • The children’s ages, developmental stages, and needs

  • Any special needs any of the children have

  • Each parent’s ability and commitment to providing for the children’s needs

  • Each parent’s involvement in raising the children to date

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

  • The distance the parents live from one another

  • The preferences of those children the court considers mature enough to weigh in

In addition to physical custody, Texas addresses legal custody, which refers to decision-making authority about the following matters:

  • Your children’s healthcare needs

  • Your children’s education

  • Your children’s extracurriculars

  • Your children’s religious education

Child Support

Child support is the state’s tool for ensuring that both parents support their children financially – in direct relation to their ability to do so. The fact that your divorce is based on cruelty won’t affect the matter of child support in your divorce unless it limits your ex’s parenting time, which can increase the child support obligation.

The Division of Marital Property

Marital property refers to all those assets that you and your spouse came to own during your marriage. It doesn’t matter whose name is attached, and it doesn’t matter who made the purchase – if you acquired it while married, it’s marital property, and there are very few exceptions.

In Texas, marital property must be divided fairly between both spouses in the event of divorce, which is called a “just and right” division. Texas considers a wide range of factors in the division of property, and one of them is fault. If you’re seeking a divorce based on cruelty, it can help you obtain a more favorable division of marital assets.


Alimony only applies in situations in which the divorce leaves one spouse without the financial means to provide for his or her own reasonable needs while the other has the resources to help. If you fit in this classification, your spouse’s cruelty – especially if it includes abuse – could affect your alimony order.

An Experienced Killeen Divorce Attorney Can Help

Brett Pritchard at The Law Office of Brett H. Pritchard – proudly serving Killeen, Texas, for more than two decades – is a formidable divorce lawyer who recognizes the risks associated with cruelty and has the legal skill and compassion to help guide your case toward its most favorable resolution – in focused protection of your rights and personal safety.

Learn more by contacting us online or calling us at (254) 781-4222 and scheduling your FREE consultation today.

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