Wanting to get a divorce is all good and well, but the next step that you need to consider is whether you can obtain one in the first place. It is hard enough just to work yourself up to the point where you could get divorced in your mind. Going through all of the scenarios and possibilities that come with a divorce is challenging in and of itself. Now you are needing to figure out whether a divorce is even something that you can move forward with. Aren't their rules that restrict or limit the reasons why you can get divorced?
Watching the news and keeping up with the goings on in the world it can seem like getting a divorce is easy. Famous people seemingly march into courthouses daily and get divorced without so much of a night's loss of sleep. However, you are sure that you heard that there are limitations for us regular people when it comes to getting divorced. It won't be as easy as a celebrity makes it out to be as far as getting a divorce. Rather, you would need to jump through some hoops and justify your request for a divorce, right?
This is true on some level. The State of Texas does not allow you to simply tell a court that you want a divorce and can just leave it at that. Rather, you need to be specific about why you want the divorce and on what grounds you are basing your divorce petition on. Your ground for divorce is the same thing as saying what your reasons are for wanting to get divorced. This does not mean that you have to include an essay in your petition for divorce as to why you want to get divorced, but you do need to list a reason why.
There are a series of reasons why a person can get divorced in Texas. They can be found in the Texas Family Code as well as in today's blog post from the Law Office of Bryan Fagan. Our experienced family law attorneys understand that sometimes the toughest part of a divorce is at the very beginning- when you are just trying to get the plane off the runway. There are a million reasons to stay married or to delay getting the divorce even if you understand that it is in the best interests of you and your spouse. Rather than delay the inevitable we want you to be able to move forward with confidence in the divorce that you are seeking. We hope that today's blog post is the jumping-off point that you need to make that dream a reality.
The seven grounds for divorce
If you want to get divorced in Texas, you need to be able to list at least one ground for divorce. When it comes to listing a specific reason, you should give some thought as to which you are going to cite in your petition. The difference between citing a ground correctly or incorrectly could mean a significantly different situation when it comes to marital property division or conservatorship issues with your children who are younger than 18. The last thing you want to do is put yourself in a position where you have lost time with your child or receive less community property than you should have simply because you did not put in the work to prepare your case sufficiently.
No-fault divorces versus fault-ground divorces
Fault-ground divorces are much different than no-fault divorces and here is why. In a divorce based on a specific fault ground, you need to plead that ground for divorce in your petition and then prove the ground for divorce with evidence. In a no-fault divorce, you are not saying that the divorce is anyone's fault in particular. Rather, the divorce comes down to a situation where you and your spouse simply could not get along with one another anymore and now divorce is your best option. This seems like a reasonable substitute for specifying why the divorce is necessary and it is. Rather than having to invent a reason for a divorce, embellish the reasons why a divorce is necessary or delay getting a divorce, you can state that you have irreconcilable differences and just get move on with your life one way or another.
A divorce based on fault grounds means that you can have a judge award you a disproportionate share of your community estate when that is divided. This simply means that you would be able to receive more than 50% of the estate when it is all said and done. The default setting in a divorce in Texas is for both spouses to walk away from the divorce with around 50% of the marital property going with him or her. However, if there are legitimate reasons to award one party more than 50% then a judge may be decided to do so. Also, a well-proven fault ground for divorce gives you an advantage in negotiation with your spouse so that you can negotiate for a greater than 50% share of your community estate even if you do not go all the way to a trial. Therefore, if you have a legitimate ground for divorce to include in your petition you should think through the issues and be as specific as you can be. Then, you need to have the evidence to substantiate the allegation made in your petition for divorce.
Make no mistake, most divorces in Texas are no-fault divorces. The main reason for this is that a no-fault divorce is simply easier to prove and takes less effort to prepare for. You can cruise right into a divorce by simply stating your petition that you and your spouse have irreconcilable differences. This is the effective path of least resistance. However, this may not be the best option for you and your family. With that said, here are the fault grounds that we think you should be aware of as you begin your divorce process.
Adultery is the most referred-to fault ground for Texas divorces in my experience as an attorney. We see people come into our office all the time for free-of-charge consultations regarding their divorce who expect to utilize adultery to their advantage in a divorce. However, while it is true that your spouse may have cheated on you during your marriage this does not necessarily mean that you will be able to "use" adultery as a fault ground like you may have imagined. The actual circumstances in which adultery may come in handy as a fault ground are more limited than you may think. Here is what you need to know about this commonly referenced fault ground on a practical level.
First, you need proof that the adultery happened. This is the first roadblock that many people run into when it comes to utilizing adultery as a ground for divorce. Hearing through the grapevine that your spouse is cheating on you is not necessarily sufficient evidence to assert that your spouse has committed adultery. Having some indication or a feeling that your spouse is cheating on you is not good enough. You need testimony from multiple people, photographs, or bank statements showing that your spouse has been draining your bank account to pay for gifts, trips, or other things for this person. That is when adultery falls into the category of something that has some teeth to it for a divorce. Of course, this does not mean that getting cheated on is not a big deal or isn’t amoral, disturbing, or downright sad. It is always those things, as well. However, I am giving you information about adultery from the perspective of a divorce lawyer and how it becomes a real issue to consider when it comes to getting a divorce.
One aspect of this discussion that I believe it is necessary to mention here with you today is that you may be surprised to learn that adultery can still occur even after you have filed for divorce. For example, if you file for divorce and immediately hit the dating scene and start relationships with people other than your spouse you are walking into a minefield as far as adultery is concerned. This is a bad idea for multiple reasons, not the least of which you cannot start dating or seeing another person while you are going through a divorce and expect that not to become an issue in your case. Rather, you should expect that your spouse will come to find out about this and potentially use it against you. It can be argued that engaging in this type of behavior shows a lack of judgment as well as a waste of community resources during a time (the divorce) when you should be conserving money. You are likely under temporary or standing orders which require you to only spend money during the divorce on essential items. Having a girlfriend or boyfriend on the side is not essential, believe it or not.
When you willfully cause pain and/or suffering to your spouse you are engaging in cruel treatment. When that treatment goes beyond the pale and starts to impact the core tenants of your marriage you run into a situation where the marriage is no longer supportable. Of course, the issue with cruel treatment is that what you think of as cruel may not be what I think of as cruel, and vice versa. You could disagree with your spouse saying that you engaged in cruel treatment just as easily as your spouse may disagree with your allegations that cruel treatment is ongoing. As a result, you should consider what you are stating in your divorce petition as far as cruel treatment and be prepared to back it up with solid evidence. All the while, if the treatment is as cruel as you say that it is you will also need to be on your toes as far as keeping yourself safe from harm during a difficult time in your life.
The behavior that you need to prove to a judge must be on purpose. Therefore, you need to be able to prove intent and to an extent, the mindset of your spouse when performing these actions must be proven as well. Ask any criminal defense attorney about proving intent and he can tell you that to do so is easier said than done. It is not easy to prove intent just as it is not easy to climb inside the mind of your spouse when he or she is doing something to determine their motivation. What seems like purposeful, intentional actions may be the result of any number of reasonable explanations that your spouse may have for justifying what he or she has done. This means that the factual circumstances of your case matter a great deal when it comes to proving cruel treatment. You should make sure that you have all your ducks in a row when you’re attempting to prove cruel treatment.
Cruel treatment can have physical and/or mental impacts on you and the treatment must also be persistent. Repeatedly engaging in bad behavior like this is what the statute has in mind for cruel treatment. Emotional and psychological distress can be utilized to substantiate an allegation of cruel treatment, but it can also be more difficult to prove emotional harm than physical harm for obvious reasons.
If you intend to allege abandonment grounds in your Texas divorce, then you need to be prepared to show a judge that your spouse left you with no intent of returning. On top of that, he or she must have remained apart from you for at least one year before your being able to win on this ground for divorce. One year cannot be interrupted by brief periods of cohabitation or a return to married life.
Your spouse has committed a felony against you, or any other person is also a ground for divorce. If your spouse was convicted of a felony, was imprisoned for at least one year, and has not been pardoned then you are off to a good start when it comes to proving felony conviction grounds for a divorce.
This is the main ground that most people get divorced in Texas and is a no-fault ground for divorce, to be more specific. If you cannot continue in the marriage, then you can specify in your divorce petition that you are getting divorced based on insupportability. When a conflict in your marriage destroys the bonds of matrimony and there is no reasonable expectation for you all to get back together then your insupportability claim has merit.
Living apart from one another
If you and your spouse have lived apart from one another for at least three years, then you can assert this no-fault ground for divorce in your petition. No cohabitation must have occurred during these three years, however. You should be sure to have a general timeline ready to present if you intend to show a judge that you are getting divorced due to living apart from your spouse. The simpler ground may be to state that insupportability is the reason for divorce rather than having to potentially prove a timeline for living apart.
Mental hospital confinement
The final ground for divorce that I wanted to mention today is when your spouse has been confined in a mental institution for at least three years and it looks like the mental impairment is so severe that it is not likely to improve. Admittedly this is not a commonly specified ground for divorce in Texas. If you do believe that it could be a relevant issue in your case to present to a court, then you should probably have some diagnostic paperwork from a doctor as well as information and hospital records to attach as an exhibit to your petition for divorce.
Final thoughts on marriage, divorce, and fault grounds
Being prepared is a good thing when it comes to getting divorced. There is no substitute for preparation, and you will find that the more prepared you are the better you can expect to present your case for divorce. There is no doubt that you could be limited as far as what grounds for divorce you can plead. For this reason, you must be able to come forward and speak to an experienced family law attorney about your divorce. There, you can learn about this subject in connection to the facts and circumstances of your case so you can be prepared no matter what you are facing leading up to your divorce.
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