Texas recognizes seven grounds for divorce, including a no-fault basis. Texas does recognize other grounds for divorce, including adultery and cruelty. Our divorce lawyers at NMSB can discuss whether pursuing a divorce based on the fault of your spouse is something you should pursue.
THE SEVEN GROUNDS FOR DIVORCE IN TEXAS
The three most common grounds for divorce in Texas are: insupportability, cruelty, and adultery.
This is Texas’ no-fault grounds for divorce. The court may grant a divorce on a no-fault basis if the marriage has become insupportable due a conflict of personalities that destroys the legitimate ends of the marriage relationship and there is no reasonable chance of reconciliation.
The cruel treatment must be of such a nature that further living together is insupportable. Examples of cruelty include physical violence or extreme emotional abuse.
The court may grant a divorce in favor of one spouse if the other spouse has committed adultery.
Texas also permits a divorce based on conviction of a felony, abandonment for at least a year, living apart for three years, or based on a spouse’s confinement to a mental hospital for at least three years. These last four grounds are rarely used.
Most divorces in Texas are granted on a no-fault basis, or “insupportability.” This permits spouses to get a divorce without raising the more inflammatory and contentious claims, such as cruelty or adultery. Spouses can simply prove that they do not get along and have no intention of reconciling in the future.
DOES FAULT MATTER IN TEXAS?
Most divorce cases are resolved through mediation or other type of settlement agreement. Mediated divorces almost always include a “no-fault” ground for divorce. Fault can be raised during settlement negotiations, althoughfocusing on fault allegations may not be conducive to settlement. Generally, a spouse who has committed a fault ground for divorce is aware of that fact, and he or she may want to avoid going to trial and having to testify about it. Hammering on one person’s “fault”, however, may not help you get a deal done and avoid an expensive trial.
Fault can also be raised in a contested divorce, which occurs when spouses cannot reach an agreement in their divorce. At the time of divorce, a court must divide property in a “just and right” manner. This gives a court wide discretion to divide property, and the court may give one spouse more than half of the marital estate. The court can consider many factors when making a property division, such as the educational background of each spouse, employment history, and age & health of the spouses. Most relevant here, the court may also consider a spouse’s fault in the breakup of the marriage.
Although Texas law permits the court to grant a divorce on a fault basis, it is difficult to predict how fault will impact the property division in each case. A judge will often weigh all relevant factors when dividing property, not just whether one spouse caused the break-up of the marriage. A divorce attorney can help you assess whether raising a fault-grounds for divorce will benefit your case.
HOW DOES ADULTERY AFFECT DIVORCE?
Adultery is one of the more common fault grounds raised in a divorce, and we are often asked whether an affair should be raised during the divorce. It depends on several factors. There may be some legitimate financial claims arising from an affair. For example, if you can prove that your spouse spent money on a paramour, you may be able to recover those funds in the property division. The downside is that it may cost thousands of dollars in attorney’s fees to prove a claim worth very little in the end. Adultery can, however, be raised effectively if the cheating spouse is asking for post-divorce spousal maintenance. If a spouse is seeking a divorce because he or she has already moved on to someone else, asking for the other spouse to provide spousal support after the divorce may not be well-received.
Raising an affair can also result in an emotional cost. It can be painful to learn about the details of an affair, especially when the impact on the outcome of the divorce is uncertain. Judges are aware that affairs typically happen in marriages that are not sustainable and may not have been sustainable for quite some time. Marriage is complicated, and the failure of a marriage is rarely the fault of just one party. It is not uncommon for the court to conclude that the marriage was already “insupportable” before an affair began. Unless the cheating spouse has spent a material amount of community funds to conduct an affair, focusing on a significant disparity in income and earning capacity tends to be a more persuasive argument to make for a disproportionate division of property than adultery by one spouse. Our attorneys can discuss these decisions with you in private and advise you how to address these possible claims.
HOW WE AT NMSB CAN HELP
Our lawyers are experienced in assessing the impact of fault on your divorce. Please contact us to schedule an appointment to discuss your case.