No-Fault Divorce in Texas

No-Fault Divorce in Texas

by Charla Bradshaw, KoonsFuller Family Law

All States recognize no-fault divorce, although some states require that the spouses live separately for a designated period of time before either of them can file for divorce. In Wisconsin, Washington, Oregon, Nevada, Nebraska, Montana, Missouri, Minnesota, Michigan, Kentucky, Kansas, Iowa, Indiana, Hawaii, Florida, Colorado, California, and the District of Columbia, one can only file for divorce on no-fault grounds, and fault grounds are not available. In States that allow fault grounds, traditional fault grounds are adultery, abandonment and cruelty.

The concept of no-fault divorce was introduced to Texas on January 1, 1970, with the introduction of “insupportability” as a ground for divorce. This rather quickly became the basis for granting nearly all of the divorces in Texas. The no-fault ground for divorce means that the court can grant a divorce without regard to fault, if the court finds 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.” (quoting the Texas Family Code).

In the Texas legislature, no-fault divorce has elicited criticism from some groups who have advocated for its repeal, when there are children of the marriage. Legislation to this effect has been introduced in virtually every Texas legislative session since 1997, but has yet to be enacted. Constitutional challenges to the Texas no-fault divorce statute have been unsuccessful in the courts. Some of the arguments put forth against the repeal of no-fault divorce in Texas are as follows:

  1. Texas would be the only State w/out no-fault divorce.
  2. The court could only grant the divorce on one of the fault grounds, therefore if the ground is not proven, then the court cannot grant the divorce.
  3. It would reduce the possibility of the spouses reaching agreements because the alleged “wrongdoer” will not want to “agree” to the fault, but may have to agree (even if untrue), in able to get divorced. The result is that more cases will go to trial.
  4. If the alleged wrongdoing spouse does not agree to the fault, the innocent spouse will have to prove the fault of the alleged wrongdoing spouse (at trial) which will force more cases to trial, and which will increase the cost of divorce for the innocent spouse.
  5. If the innocent spouse wants a divorce and cannot prove the fault, then the innocent spouse who desires to get divorced, will have to stay married, therefore punishing the innocent spouse who desires the divorce.
  6. It will promote the spouse who wants a divorce to commit wrongdoing to force the other spouse to file for divorce (i.e. making the marriage unbearable for the innocent spouse).
  7. Increases cohabitation.
  8. Collaborative law (CL) cases: In collaborative law, a participation agreement is required, and in that agreement the spouses must describe the nature and scope of the family law matter. This would involve setting out the fault ground(s) for the divorce, thus stagnating the utilization of collaborative law in divorces.

Fault grounds continue to exist in the Texas statutes. Following are the fault grounds for divorce in Texas:

  1. Cruelty—The court may grant a divorce if a spouse is guilty of cruel treatment toward the other spouse of a nature that renders further living together unbearable.
  2. Adultery—The court may grant a divorce if a spouse has committed adultery. Adultery is a married person’s voluntary sexual intercourse with a person other than their spouse.
  3. Conviction of a Felony—The court may grant a divorce if during the marriage the other spouse has been convicted of a felony, 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 has not been pardoned. However, the court may not grant a divorce under this section against a spouse who was convicted on the testimony of the other spouse.
  4. Abandonment—The court may grant a divorce in favor of one spouse if the other spouse left the complaining spouse with the intention of abandonment and remained away for at least one year.
  5. Living Apart—The court may grant a divorce in favor of either spouse if the spouses have lived apart for at least
    three years.
  6. Confinement in a Mental Hospital—The court may grant a divorce if at the time the divorce is filed the other spouse has been confined in a state mental hospital or private mental hospital, in any State, for at least three years, and it appears that the hospitalized spouse’s mental disorder is of such a degree and nature that adjustment is unlikely, or that if adjustment occurs, a relapse is probable.

One can file for divorce on the ground of no-fault (also known as insupportability), and on one or more fault grounds. In Texas, no-fault is the most common ground for divorce, however, fault grounds can also be asserted. Cruelty and adultery are the most commonly asserted, most often as an alternative to insupportability, and to serve as a basis for an unequal division of property, or to strategically to assist in a custody dispute. The majority of divorce cases settle without going to court, and the majority of spouses agree that their divorce will be granted on no-fault grounds.


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