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Grounds for Divorce In Texas

Grounds for Divorce In Texas

When a petition for divorce is filed, the divorce attorney representing the spouse seeking a divorce must allege one or more of the seven grounds set forth in the Texas Family Code.  These include three no-fault grounds of Insupportibility, Living Apart and Confinement to Mental Hospital.  Grounds based on fault can be alleged for Cruelty, Adultery, Conviction of a Felony, and Abandonment.  

No Fault Grounds for Divorce in Texas

Historically, parties would need to allege and prove proper grounds to divorce their spouse. Otherwise, the divorce would not be granted.  While that is techniqually still true that proper grounds need to be established, Texas, like other states, has recognized the problems with forcing people to stay married when one or both of them simply no longer wishes to be married to the other.   

As a result, Texas has embraced three no fault grounds for divorce: Insupportibility, Living Apart and Confinement to Mental Hospital.   The latter two no-fault grounds recognize that cohabitation is an essential part of a marriage relationship and three years without cohabitation indicates that the parties are not living as husband and wife.  As such, these grounds may be used to justify dissolving the marriage if sought by either party.  Neither ground implies fault of either party and either could be used on its own to support a petition for divorce provided they could be established with evidence.

Insupportability, on the other hand, can be alleged as a ground for virtually any marriage with the testimony of the spouse seeking the divorce.   A divorce attorney would simply allege that "the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation."  In theory, the divorce attorney representing a spouse opposing the divorce may allege and try to prove that a reasonable expectation of reconciliation exists.  However, when one of the spouses testifies that there is no chance for reconciliation, it would be near impossible to overcome that testimony since reconciliation requires consent of both parties.  Furthermore, courts have ruled that the legislature intended for the courts to grant a divorce when either party alledges insupportability as a ground for divorce. Because of this, insupportability is almost always alleged as one of the grounds for divorce. 

Fault Grounds for Divorce in Texas

Texas also recognizes four additional grounds for divorce based on faulth of the other party--Cruelty, Adultery, Felony Conviction, and Abandonment.  Each of these grounds assert that actions or

behavior of the other party is the root cause of the break-up.    Most of these are self-explanatory, but each is set forth in the Texas Family Code.

Cruelty: cruel treatment toward the complaining spouse of a nature that renders further living together insupportable. 

Abandonment: requires a showing that the party intended to abandon the other spouse and the abandonment lasted a year or more

Conviction of a Felony: requires proof of a felony conviction with at least one year of incarceration without any subsequent pardon.

Adultery: requires evidence of sexual relations with a person other than one's spouse during the marriage, including during periods of separation. 

Significance of Fault versus No-Fault Divorce in Texas

Generally, the significance of a fault versus no-fault ground for divorce is that the court can take fault into account when making equitable division of property and other determinations.  Consequently, the innocent party should be awarded a greater share of the martial estate.  While some courts have ruled that a party alleging only no-fault grounds for divorce can present evidence of fault to seek a greater proportion of marital assets, other courts have ruled that such evidence is irrelevant when no fault grounds for divorce have been alleged.  Whether the divorce attorney should initially assert a fault ground for divorce or only no-fault grounds for divorce depends upon the facts of the case, the evidence available, the jurisdiction, and the goals of the client. 

Questions?  Call us now to speak with an experienced Family Law attorney. 

 (469) 630-2550