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Fault Factors in Divorce and No-Fault Divorce

In Texas, there are multiple ways for you to be able to obtain a divorce. The two different paths for you to get divorced would be through a no-fault divorce and a divorce based on a specific fault ground. At the end of the day, you can get a divorce no matter what you are alleging the reason for the divorce be. However, being able to have a specific fault ground for divorce can impact different areas of your case such as child custody and property division. Otherwise, you and your spouse would be on even footing when it comes to determining custody rights and dividing Community property.

before we go any further, let's walk through what it means to get a divorce based on specific fault grounds or no-fault grounds at all. You can get a divorce either way but there are specific factors to consider when attempting to obtain a divorce in Texas. Let’s walk through the fault grounds and what it means to get divorced. First, getting divorced in Texas means following a process. That process is driven by the filing of documents and the meeting of deadlines. This may sound a whole lot like your own job. However, if you are unfamiliar with the process then you should stop and consider whether or not you have the bandwidth and time to proceed with a divorce without an attorney. 

Do I need to hire an attorney for my divorce?

There is no requirement that you hire a lawyer to help you get divorced. However, you should consider whether or not you could benefit from hiring a lawyer before making a decision not to do so. First, I would look at your case and determine if you have children under the age of 18 or a significant amount of property. If either or both of these questions result in you answering “yes” then you should consider hiring a lawyer. Second, if you have no children under the age of 18 or a minimal amount of property then you may be able to get away with not having a lawyer for your divorce. However, it would be a good idea for you to consider contacting an experienced family law attorney before deciding not to hire a lawyer.

Meeting with an experienced family law attorney means that you can learn more about divorce hey and the process of getting a divorce based on the circumstances of your case. The reason why I think it is a good idea for you to have an attorney representing your divorce if you have children under the age of 18 is that your relationship with your kids there's two valuable it can be put at risk if you go into your divorce case without representation. Well, no person can yes with complete accuracy what would happen in your divorce, I can tell you that by working with an experienced family law attorney you can avoid costly delays in your case and receive advice tailor-made to your specific circumstances. 

You can contact the attorneys with the law office of Brian Fagan today to learn more about our office, our attorneys, and staff as well as the divorce process in Texas. We offer free of charge consultations at one of our two Houston area office locations, by phone and via video. We are here to serve you just as we have done for clients in Southeast Texas for many years. With that said, let's walk through some of the fault grounds for divorce in Texas.

Count to seven, count the grounds for divorce in Texas

There are seven grounds for divorce that are specified in the Texas Family Code. This means that if you want to say that your divorce occurred for a specific reason you will need to choose from one of the seven grounds for divorce listed in the Code. Keep in mind that you do not need to, however. You can get divorced for no specific reason at all. This is what a no-fault divorce is. Previously you would have needed to prove fault in asking for a divorce. However, decades ago that changed. 

There are three no-fault grounds that you can specify in your Original Petition for divorce, the initial filing into your divorce case.  Insupportability is the number one reason why people divorce in Texas. This isn’t an official statistic but is true based on my experience in the world of Texas family law. Insupportability is another term for “irreconcilable differences.” These are differences between the two of you that cannot be reconciled or brought into agreement. Despite your best efforts you and your spouse simply couldn’t make the relationship work any longer. 

To show that your marriage is insupportable, you would need to show that there is discord or conflict in personalities that is so pervasive that it destroys the legitimate ends of your marriage. Furthermore, that supportability prevents any reasonable expectation of reconciliation. That is a lot of words to say that you need to show that you and your spouse do not get along- so much so that you cannot continue being married. This is a subjective test- based on the circumstances of your relationship- such that no court is going to argue with you if you assert that these conditions are present. 

Judges are not going to fight you on your divorce. You won’t be told that your reason for divorce is not good enough or that you need to try therapy first. Your case will be processed among the many other people trying to get divorced in your county. You do not need to concern yourself with worrying that your divorce will not go through because your disagreements are not significant enough to please a family court judge. While that may have been true at some point in time, which is why people would try and travel the country to find a more favorable jurisdiction to divorce in, it is not the case now. 

The next cause for divorce that we need to discuss is living apart from your spouse. This is an interesting topic to discuss for several reasons. If you and your spouse have lived apart from one another for a considerable length of time- at least three years at the time of a divorce trial- that means that you two could specify that your divorce is occurring based on grounds of living apart from one another. 

For the most part, this is a ground for divorce that a family court would look at as an agreed divorce of sorts. If you all have lived apart from another for that long, it is done basically by agreement. That living apart was better for the two of you and better for your relationship- such as it is. Many people who decide to live apart from their spouse for an extended period would eventually decide to get a divorce. However, you may be in a marriage relationship where you and your spouse have been living apart for an extended period without having first gotten divorced. If this sounds like your situation just know that you can get divorced based on these grounds.

One of the important factors to consider when it comes to living apart from your spouse over an extended period is that this is a circumstance that can play into how property is divided in your case. Fault grounds can play a role in dividing property in that the innocent spouse may be able to receive a disproportionate share of your community estate. Disproportionate means more than half. Here is how that could work in a situation where you and your spouse have been separated and living apart for more than three years period

Let's say that you make a claim in your divorce petition that you have not seen your spouse in over eight years period you have performed whatever amount of due diligence that you could to locate him but you have not been able to do so you have contacted his former place of employment, relatives and even close friends to see if you could find out where he is. However, despite your best efforts, you have not been able to locate him. At this stage, you feel like you have exhausted all of your resources and have no idea where to turn next.

This can be a troublesome situation if you are trying to file for divorce. The most troublesome aspect of this part of a case is that to begin your divorce you must not only file an original divorce petition but also must provide your spouse with notice of your having filed. You cannot simply file your divorce petition and then try to proceed with the case without moving further. Your spouse must be aware of your filing the case and have an opportunity to respond. However, despite your due diligence in a situation like this, you would not be able to notify your spouse through traditional means. With, how could you proceed?

In a situation like this, you may be able to convince the court that all the property in your possession should be handed over to you at the end of the divorce. However, the first step in this process may involve you being able to provide constructive notice to your spouse of the divorce filing. Constructive notice amounts to, likely, not giving him or her notice but going through the effort to do so. This could mean providing notice of another divorce in a newspaper where you believe that your spouse is or even sending him or her a certified letter with the divorce petition included.

If a court believes that you have performed ample due diligence to contact your spouse and you have shown that traditional methods of service process have not been effective, then the court may allow you a substitute service. Any of the methods I mentioned ago would suffice potentially. Assuming that you are granted your request to serve your spouse through one of these means then you may be able to have your say when it comes to dividing property and assigning parental rights to your children if you have any.

Next, if your spouse has become declared mentally incompetent and has been confined to a mental hospital or institution for at least three years then you can assert this ground within your original divorce petition. It must be clear that the mental disorder is unlikely to improve and that relapse is more likely than not. Asserting these grounds allows you to retain the property in your possession but also protects your spouse's ability to be able to have their separate property determined and have an opportunity to retain a just and right division of the community estate.

Additionally, the court may appoint someone known as guardian ad litem to represent your spouse’s interests if he or she is in a mental institution. It may be an assumption that you have that if your spouse is in a mental institution that he or she will not have a say in the divorce. However, the court will give him or her every opportunity in the world to participate in the case and will almost certainly appoint someone independent to be able to represent your spouse’s interests if he or she is unable to do so due to their mental condition or impairment. In a case like this, it is highly recommended that you work with an experienced family law attorney to assist you during the process. There can be a lot of moving pieces in a situation where your spouse is receiving inpatient psychiatric care and you want to be prepared for any outcomes that may occur.

What are the four-fault grounds for divorce in Texas?

Cruel treatment of your spouse towards you that makes living together any longer impossible is one of the four fault grounds for divorce in Texas. Keep in mind that what you believe to be cruel treatment may not be cruel treatment in the eyes of a family court judge. A judge will have a great degree of latitude when it comes to determining what is and what is not cruel treatment. You can be sure that consistent and purposeful actions that lead to suffering on your part most likely will be found to be cruel treatment. Think about physical violence over a long period. 

Next, adultery is probably the most well-known ground for divorce. To be able to prove adultery you cannot simply assert that your spouse has cheated on you. Rather, you must be able to provide evidence, at least circumstantially, of the adultery has occurred. Acts of adultery can be found to be grounds for divorce even if the adultery occurred after physical separation. Keep in mind that You and your spouse will still be married until the end of your case. With that in mind, if you or your spouse begin to engage in an extramarital relationship that this can be utilized against you in the divorce case.

It is usually things having to do with the money that ends up impacting you in an adultery situation. If you or your spouse use community funds to buy gifts, vacations, or other nice things for a new relationship and this could be something that harms you when it comes to dividing up the community estate. You may have to divide up the community of state and then reimburse your spouse for the money that you had spent on this other person.

If your spouse is convicted of a felony, then this can stand as fault grounds for divorce so long as the conviction occurred during the marriage and your spouse serves at least one year in prison. Keep in mind that if it is your testimony that is the entire basis for conviction of the felony then you cannot assert these grounds and your divorce. However, things like domestic violence or family violence can serve as reasons why you may be able to be awarded spousal maintenance after your divorce even if you have not been married for 10 years or more. 

Finally, abandonment is the final fault ground for divorce in Texas. Your spouse must have left you voluntarily and they must have had the intent to abandon you. This means that your spouse would have had to have the intent not to return to your home. The length of time typically must be longer than one year. It is not enough to say that your spouse is abandoning you if he or she leaves for a few days and then comes back.

Questions about the material contained in today's blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material contained in today's blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family circumstances may be impacted by the filing of a divorce or child custody case. 

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