You may be in a position right now where you want to get a divorce. After all, you're reading blog posts on a family law attorney's website. It doesn't take much investigation to determine that you are not happy in your marriage and are thinking about taking concrete steps to end the relationship legally. While you may want the wedding to finish and have come to terms with getting a divorce, you may not have thought much about why you will tell the judge that explains why you are getting a divorce.
I'll be a little more specific about what I am talking about. In Texas, you must specify in your Original Petition for Divorce why you ask the court to grant you a divorce from your spouse. It is not enough to tell the judge that you want to get divorced. You must have a reason why the divorce ought to be granted and is justified under the law. The reason for your divorce is legally known as a ground for divorce. You must be able to come up with a valid basis for divorce to have your divorce petition granted by a judge.
In Texas, there are seven ways to divorce your spouse. These seven grounds can be categorized as follows: fault grounds for divorce and no-fault grounds for divorce. The floor that you choose to cite in your Original Petition for Divorce and that you can ultimately prove in court will impact various areas of your case down the line. Keep in mind that you need to confirm any ground for divorce that involves placing fault at the feet of your spouse.
In today's blog post from the Law Office of Bryan Fagan, I would like to walk you through these fault grounds to impress the importance of their role in your divorce. You may be charging into your divorce at 100 miles an hour, but unless you are at least aware of the importance of issues like this, you will be at a distinct disadvantage compared to your spouse. Let's walk through these grounds for divorce and talk about why they are important to you and your family.
Fault grounds for divorce require more evidence than a no-fault divorce.
If you plan on specifying to the judge just why your divorce is justified under the law, you would need to cite one of the six fault grounds for divorce. Suppose you can present sufficient evidence that your spouse is at fault for the breakup of your marriage. In that case, you may be able to argue for more time with your kids, a more significant share of your community estate, or even the payment of spousal maintenance to you from your ex-spouse. A no-fault divorce does not carry with it the "penalties" for your spouse than finding him to be at fault for the divorce proceedings would.
To prove a fault ground for divorce, you would need to show the judge that your spouse caused the breakup of your marriage. You can allege just about anything that you would like in your Original Petition for Divorce, but it is up to you to prove the allegations you made regarding why you are petitioning for divorce. You can testify under oath to provide evidence on the ground for divorce. You can have a witness of yours do the same. In addition, you can present documentary evidence to the court to substantiate the allegation you are making. Either way, you must have evidence to prove to a judge that your spouse is at fault for your divorce is filed.
For the most part, divorces in Texas are based on no-fault grounds. It is easier to allege that neither spouse is at fault for the divorce, but that discord or conflict of personalities is the cause of the divorce having been filed. This means that you and your spouse can no longer get along and that you have no chance at reconciliation or repairing the relationship. As long as one of you feels this way, then your divorce will proceed.
Adultery as a fault ground for divorce
Adultery is probably the most common fault ground for divorce that we see filed for in Texas. Adultery means that your spouse has engaged in a sexual relationship with someone who is not you during your marriage. A lot of times, spouses have feelings or suspicions that their spouse is having an affair. You could come across sketchy text messages or other evidence that causes you some concern. If enough circumstantial or direct evidence piles up, it may lead you to file for divorce based on your spouse's committing an act(s) of adultery.
The key to proving an allegation of adultery in a divorce case has clear and convincing evidence that your spouse has stepped outside your marriage and engaged in a sexual relationship. This evidence can take many forms. You have probably seen movies or television shows where a person has gone to great lengths to investigate a spouse who may be having an adulterous affair.
What you don't need to do is to put yourself at risk of harm by trying to catch your spouse in the act. Following your spouse around town, trying to tape your spouse's phone calls, snooping through their emails or text messages may endanger you or violate state law. You should consult with an experienced family law attorney before doing any of these things to come up with evidence.
There are "easier" ways to prove adultery than trying to play detective. For instance, you should keep an eye on your checking account for suspicious activities or charges that show up. You would be surprised how many people in adulterous relationships use jointly used credit or debit cards for purchases. If anything doesn't check out, you should make a note of it. The use of community funds to pay for gifts for their paramour is a big no-no and could impact what percentage of the community estate your spouse can retain in the divorce.
Clients will sometimes ask whether or not it is ok to "come into the open" with a relationship during the divorce case. Meaning: you have moved out of the marital home and are now living on your own. Now that you are no longer sharing a bed with your spouse, can you start to actively and openly date a person you were hiding from your previous spouse?
My advice on this question would be to avoid doing this until you are officially and legally divorced from your spouse. It may feel emotions that you are divorced when you file your petition, but the case is not completed until the final decree of divorce is signed by the judge. However, that won't be for at least two more months after you file, so you need to play it safe and act like you are still married for as long as your divorce goes on.
Abandonment as a fault ground for divorce
You can also be granted a divorce in Texas if your spouse abandoned you. While it may feel like your spouse has emotionally abandoned you multiple times in your marriage, you need to be able to prove a physical abandonment. Your spouse must have chosen to leave your marital home with the expectation of remaining away from you for at least one year. If your spouse has left you, stayed away for one year, and has no intent to return, then you should have your facts straight to submit an abandonment allegation in your Original Petition for Divorce.
Keep in mind that if you move out of the house and stay away from your spouse initially, that may be enough to negate any abandonment claim you could have made against your spouse. An abandonment claim can be challenging to proceed with for no other reason than your spouse may be difficult to locate. This opens up issues of service and notifying your spouse that you have even filed for divorce. These are separate issues, however, but ones that you should make sure to ask your attorney about at the outset of your case.
Cruelty as a fault ground for divorce
Cruelty is something that can be proven by showing that your spouse has engaged in willful acts that have caused you pain or suffering. The actions by your spouse must have been so evil, painful, or belligerent to make a living together as husband and wife impossible. Of course, what is cruel to you may not be offensive to be, and vice versa. My kids think it's not kind when my wife and I don't have dessert for them after dinner. In a divorce case, cruelty is determined based on the specific circumstances of your case. So much of that determination depends directly on how your judge views cruelty.
A single act of violence in the home, while reprehensible, may not substantiate cruelty grounds in a Texas divorce. The wrong actions must have been multiple and over a reasonably significant period in most cases. If you are simply in a period of your marriage where you and your spouse are constantly fighting, this probably will not constitute cruelty, for example.
What are the no-fault grounds for divorce?
Generally speaking, no-fault divorces take no evidence to prove and require less time than at-fault divorces. For this reason, the vast majority of cases that our office handles are no-fault divorces. In a no-fault divorce, you do not need to prove that your spouse has done anything precisely wrong that has led to your filing the divorce. One could surmise that they have upset you somehow, or else the divorce would not have been filed. However, there is no need to prove anything specific or submit a certain degree of evidence to substantiate a no-fault divorce.
The first and most common of the no-fault grounds for divorce is insupportability. If you can no longer tolerate being in the marriage, you can cite insupportability as why you are filing for divorce. This is not something that the judge is going to ask you for any evidence to prove. What is insufferable to you may not be unbearable to me, but the judge won't require you to prove what you can and cannot tolerate.
Living apart from one another as a fault ground for divorce
You may be surprised to learn that spouses will live apart from one another for stretches of their marriage. This may be related to searches for employment, attempts to reconcile while living apart, or other life circumstances. Regardless, if you and your spouse have been living apart for at least three years, you can cite this as the no-fault ground for divorce that your case is based on. That period of living apart must be continuous.
Please note that confinement in a mental institution is another no-fault ground for divorce. However, I have never come across this situation in any divorce case I have worked on, and since it is so uncommon, I will not devote much time to discussing it here.
Questions about how to start your divorce on the right foot? Contact the Law Office of Bryan Fagan
If you have any questions about your divorce case, please get in touch with the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week here in our office. These consultations are an excellent opportunity to ask questions about your case and receive feedback about your specific circumstances.