Do I Need a Reason to File for Divorce?

Do you need to specify a reason for divorce when filing? For instance, if your spouse just won鈥檛 clean up after themselves is that what you need to say? What if your spouse is just not taking care of themselves as much lately? Or do they chew food with their mouth open? Are these grounds for divorce in Texas?

Legally, the reasons listed above for wanting a divorce are not grounds for divorce. We鈥檒l discuss the grounds for divorce in Texas, but it鈥檚 important to note that habits or activities of daily living do not qualify as legally recognized grounds for divorce. Nonetheless, they may still be reasons why you might seek a divorce. There is no doubt that the habits of our spouses, their shortcomings, and their faults may ultimately push us toward a divorce. The question is whether these faults fall into the category of a fault ground.

Listing Fault Grounds in a Texas Divorce: Is it Necessary?

To begin, there is nothing that requires you to list a fault ground in your Original Petition for Divorce. Texas is a 鈥no-fault鈥 state meaning that you can choose to list a fault ground for divorce, or you can file for divorce based on irreconcilable differences and/or a conflict of personality. This means that you can file for divorce for any reason or no reason at all. The judge is not going to require you to list out the specific reason that you want a divorce.

Can you use fault grounds for divorce if you have a specific reason beyond minor annoyances? There are a handful of these fault grounds that are specified under the Texas Family Code. Let鈥檚 focus our attention on these fault grounds, why they may be useful to you, and why you would potentially want to specify these in your Original Petition for Divorce.

Discussion of fault grounds for divorce can affect property division, conservatorship rights, and visitation with your children. It鈥檚 crucial to consider how this aspect may impact various aspects of your life and case. Where can you turn for help, guidance, and information about fault grounds and the circumstances surrounding your divorce?

Law Office of Bryan Fagan: Your Partner Through Divorce

The attorneys with the Law Office of Bryan Fagan work to serve people just like you every day in our community. We take a great deal of pride in being able to walk side by side with our clients through difficult circumstances and out the other side into post-divorce life. Whatever your goals are, we can help you in a divorce. If you need help developing goals for your case, we can help you in a divorce. If you don鈥檛 know where to start, we can help you with a divorce.

Free-of-charge consultations with our experienced family law attorneys are available by phone, in person at one of our three Houston area offices, and via video. Whatever point in the divorce process you find yourself in it is a good idea to at least learn what options are available to you for representation. When it comes to family attorneys in the Houston area there are none better or better suited to step up and help your family than the attorneys with the Law Office of Bryan Fagan. We work for you and will have your back throughout your case.

Living apart from your spouse

If you and your spouse have not lived in the same home for at least the past three years, then you may be able to support a ground for divorce known as living apart. Many spouses simply choose to end their marriage by moving out of the family home. While this doesn鈥檛 legally divorce you and your spouse it does effectively end the relationship. The three-year apart requirement would need to be in place at the time of your divorce trial.

Even if you do not meet the three-year time apart requirement at the time you file for divorce, if you are going to be there in just a few months then it may be worth it to file based on this fault ground and then work to prove the fault ground during the divorce. Being able to produce evidence of living apart such as a lease agreement, utility bills, photos, social media posts and things of this nature will be incredibly important

Debunking the Myth: Living Apart Doesn鈥檛 End a Marriage in Texas

Some people fall into the trap of thinking that if they separate themselves from their spouse for a period the marriage will sort of just end on its own. I don鈥檛 know if these folks have thought through what they are doing but I鈥檝e encountered enough people in my years as an attorney who falls into this category to believe that it requires some mention here in this FAQ. Simply living apart from your spouse for a certain period doesn鈥檛 automatically result in divorce.聽By the same token, there is no such thing as legal separation in a Texas divorce. You can separate yourself from your spouse- physically, emotionally, and financially- but you cannot end the marriage by your actions of moving out.

Living apart from your spouse gives you the opportunity to influence how your property is divided in the divorce. Texas being a community property state means you and your spouse have the opportunity to divide property acquired during your marriage. A just and right division is the basis under which a family court judge must seek to divide the property if you and your spouse cannot agree on a method to do so yourselves. Note that a just and right division does not necessarily mean a 50/50 split of the property. Instead, the judge will consider a variety of factors and circumstances unique to your life before dividing your property between you and your spouse.

Divorcing an Absent Spouse: What Are Your Options?

What does divorcing your spouse look like on a practical level if you cannot locate him or her? This is an extreme example of living apart. In such a scenario, you can initiate a divorce filing, but to proceed, you must either serve your spouse with notice of the filed divorce or persuade them to sign a waiver of service. Without fulfilling these requirements, you may face prolonged waiting to locate your spouse. What options would you have in a situation like that?

If you display diligence in attempting to locate your spouse, then it is likely that you can specify and prove in your divorce petition that you are filing for divorce based on the fault ground of living apart. In asking the judge to allow you to serve your spouse via substitute service you would need to tell him or her of your circumstances related to living apart from your spouse as well as the efforts that you have undertaken to serve him or her with notice. If you have documented your steps dutifully and enough time has passed then you can get the divorce moving via substitute service and walk away with all of the property in your possession.

Mental Hospital Confinement

Mental incompetence is sadly a situation that could befall any of us at any time. We see issues arise after injuries, accidents, and the aging process. If your spouse is confined to a mental institution, or hospital or receiving inpatient psychiatric care then you have the basis for a ground for divorce in Texas. The confinement or hospitalization must last for at least three years to meet the burden of proving this fault ground for divorce, however.

Keep in mind, however, that this is a fault ground that only seeks to support the spouse who is not confined. Specifically, by citing this fault ground for divorce in your petition you are alerting the court to the circumstances of your spouse. In doing this you allow the court to protect the interests of your spouse even though they are not fully able to represent themselves in a divorce. The court is likely to appoint a guardian ad item to your case to represent the interests of your spouse in the divorce. Just because your spouse is confined to a mental institution does not mean that you will end up getting 鈥渆verything鈥 in the divorce. That is quite unlikely to happen.

Cruel treatment

What does cruel treatment mean, exactly? In Texas, cruel treatment regarding the fault ground for divorce means that your spouse has treated you in such a way that it renders further living together unsupportable. Yikes. Not very specific, is it? Quite a bit is left up to the imagination as far as what these terms mean and what impact they could have on your divorce case. A judge would look to the facts and circumstances of your life when it comes to determining whether the cruel treatment has happened in your marriage.

Your spouse must have acted on purpose and consistently in their cruel treatment. A one-time occurrence of violence in the relationship may be harmful assault or battery, but cruel treatment is more of a history of treatment that is harmful, either mentally or physically to you. It is important to understand that a family court judge will do the best they can to reconcile your allegation of cruelty against an objective standard for what cruel treatment looks like. This is tough. What looks like cruel treatment to me may not look like cruel treatment to you.


Adultery is the most recognized fault ground for divorce, known for being relatively easy to prove compared to other fault grounds. If a spouse has committed adultery, evidence must be presented to the court to substantiate the claim. Mere allegations without supporting evidence are insufficient for a successful divorce on these grounds.

Adultery is something that can matter to your case even after your divorce has been filed and you and your spouse are no longer living under the same roof. We recommend that you do not start dating until after the divorce has ended. Any earlier and you run the risk of putting yourself in a position of your spouse amending their petition for divorce and asserting a fault ground of adultery.

Why is adultery such a big deal in the context of a divorce? Beyond the betrayal, heartache, and loss of trust associated with adultery you also have a situation where your spouse has possibly utilized community resources to engage in this extra-marital affair. Did your spouse spend money on gifts, hotel rooms, vacations, or other expenditures that ate away at the size of your community estate?

If that has occurred, then two things may happen subsequently. For one, your spouse may be ordered to pay the community estate back for the money that was spent on their paramour. This is known as reimbursement. The other reality is that you may be in line to receive a disproportionate share of your community estate. This means that you could receive more than half of the community estate based solely on adultery. There are always other factors at play in a situation like this, so it is wise to be able to speak with an attorney about the situation.

Conviction of a felony

If your spouse has been convicted of a felony during your marriage and has spent at least one year in prison, then you may be able to assert a felony conviction as a ground for divorce in Texas. If the conviction was based solely on your testimony, then you would not be able to assert this ground for divorce successfully. You may still have fault grounds like cruel treatment to assert but not a conviction of a felony.

While a finding of a felony conviction as a fault ground may not be possible in this situation you may be able to tell a judge that you need spousal maintenance because of the abuse. The usual ten-year marriage requirement does not appl