Fault and No-Fault Grounds for Divorce in Texas

By: Abigail Grieve

Upon hiring an attorney to begin a divorce proceeding, often the first document that will be drafted is an Original Petition for Divorce which will be filed with the courts and is the official start of the case. Before filing, your attorney will have you review the document, and you will likely come across language that states “the marriage has become insupportable because of discord or conflict of personalities between the Petitioner and Respondent that destroys the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation,” and may wonder what that means.

When filing for divorce, you must state a reason: a ground for the divorce. In Texas there are four “fault” grounds and three “no-fault” grounds for divorce. By pleading a fault ground, you will have to prove to the court that the condition of your marriage has deteriorated to a point that warrants a divorce. Alternatively, you may file under a no-fault ground, whereby nobody is at “fault” for the break-up of the marriage, but nonetheless you are asking the court for legal dissolution.

Fault Grounds:

1. Cruelty¹: Cruelty can take the form of physical actions or threats, as well as mental abuse and manipulation. This ground requires that you prove purposeful, persistent infliction of suffering by one spouse against the other spouse.
2. Adultery²: Under this ground, you will have to prove to the court that there has been adultery through direct evidence (such as a private investigator witnessing the act or an admission of guilt by your spouse and/or their paramour) or through circumstantial evidence (such as unexplained jewelry purchases or texts and phone calls to the same number over and over).
3. Conviction of a felony: To obtain a divorce on this ground, you must prove that the other spouse “(1) has been convicted of a felony; (2) has been imprisoned for at least one year in the Texas Department of Criminal Justice, a federal penitentiary, or the penitentiary of another state; and (3) has not been pardoned.”³
4. Abandonment: To obtain a divorce under this ground, you must prove that the other spouse (1) left with the intention of abandonment; and (2) remained away for at least one year.”⁴ Leaving “with the intention of abandonment” means that they intended to not ever return; for example, you could not ask for a divorce under this ground if your spouse has been sent overseas due to military enlistment, but intends to return.

No-Fault Grounds:

1. Living apart⁵: If you and your spouse have lived in separate residences for at least three years, the court may grant a divorce upon either spouse’s filing.
2. Confinement in a mental hospital⁶: To obtain a divorce under this ground, you must show the court that your spouse has been confined in a state mental hospital or private mental hospital for at least three years, and that it appears that the mental disorder for which they are confined is unlikely to be recovered from.
3. Insupportability⁷: Last, but certainly not least (as it is probably the most common ground) is insupportability, which you have probably heard referred to as “irreconcilable differences,” and which is quoted at the beginning of this blog. Under this ground, you do not have to prove or show anything, you are simply stating to the court that you and your spouse should no longer be married because of conflicts in the marriage or of personalities that has led to the decision that the marriage should be dissolved. Because you do not have to prove anything to the court, nor is there any time limitation, you will often see this ground as an “in the alternative” ground, even when you are attempting to prove another ground such as adultery. As such, if the court determines that you have not proven adultery (or other fault ground) to its legal requirement, you may still obtain a divorce through an insupportability claim.

 

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¹ Tex. Fam. Code Ann. § 6.002.
² Tex. Fam. Code Ann. § 6.003.
³ Tex. Fam. Code Ann. § 6.004.
⁴ Tex. Fam. Code Ann. § 6.005.
⁵ Tex. Fam. Code Ann. § 6.006.
⁶ Tex. Fam. Code Ann. § 6.007.
⁷ Tex. Fam. Code Ann. § 6.001.