What Is Fault vs. No-Fault Divorce in Texas?

In Texas, both fault and no-fault divorce are available. The key distinction between these types of divorces is whether or not one spouse accuses the other of wrongdoing that dissolved the marriage. While most divorces are handled as no-fault divorces, where neither spouse makes such allegations, fault-based divorces can and do occur.

Generally speaking, if you file for a no-fault divorce, it means that neither party is blaming the other for the dissolution of the marriage. In this case, there must be an agreement between both parties or a period of separation in order to initiate a no-fault divorce. On the other hand, a fault divorce is one in which one party blames the other for the breakdown of the marriage.

How to Get a No-Fault Divorce

No-fault divorces in Texas can be faster and less expensive than a “fault” divorce because there are no allegations of marital wrongdoing to resolve. In Texas, there are two types of no-fault divorce: (1) a divorce based on insupportability and (2) a divorce based on living apart for at least three years.

A divorce based on insupportability does not require you to prove that your spouse did something wrong—you just need to show that the marriage is “insupportable” because of discord or conflict between you and your spouse that can't be resolved. Keep in mind that you don’t need to provide evidence of irreconcilable discord or conflict.

In a divorce based on living apart for at least three years, the court must find that you have been living separately and apart from your spouse for three continuous years without any cohabitation (living together).

It is always wise to consult with an experienced family law attorney who can help you understand your rights and represent your best interests throughout the process.

What Are the Grounds for a Fault-Based Divorce in Texas?

In Texas, a divorce can be based on grounds of fault. This means that one spouse alleges that the other’s behavior directly and overwhelmingly contributed to the marriage’s failure, and the court should take such misconduct into account when resolving the divorce.

The following are the most common grounds for fault-based divorce in Texas:

  • Adultery: One party had an affair while married and it seriously affected the marriage
  • Cruelty: One party physically, mentally, or emotionally abused the other spouse
  • Abandonment: One spouse has left the marriage without intent to return
  • Felony conviction: One spouse was convicted of a felony and sent to prison
  • Living apart: The couple has been living apart for at least 3 years and both agree to the divorce

In all cases, the petitioner must prove that the other spouse is at fault and therefore responsible for the breakdown of the marriage. If one or more of these grounds for a fault-based divorce are established, then the court will grant a divorce to the petitioner. This type of divorce does not require any waiting period before it is granted.

Do Fault-Based Divorces Affect Property Division?

In Texas, a fault-based divorce may have an effect on how property is divided during the divorce. If the court finds that one spouse is more to blame for the dissolution of the marriage, it may be more likely to award that spouse a larger portion of the marital property.

The court will consider various factors in determining how to divide property in a fault-based divorce. These include each party’s earning capacity, separate or community property contributions, and any written agreement between the parties concerning their financial arrangements.

Can Fault-Based Divorces Affect Child Custody?

Ultimately, the court will make decisions in the best interest of any children involved and will take fault-based divorces into account when making those decisions.

Factors such as whether a spouse was abusive, neglected the children, or had an affair can all be taken into consideration. Additionally, if the court finds that one spouse is more likely to provide a stable environment for the children than the other, then this will also be considered in the determination of primary custody.

We Can Help with Your Divorce

Whether you need a no-fault or fault-based divorce, we at Kay Polk, Attorney at Law understand that this is no small matter to address. Even if you engage in a no-fault divorce, you and your spouse can disagree a great deal on how to divide your marital assets and time with your children.

Don’t leave such important matters to chance – get legal help from an experienced professional who can get you through this. Reach out to Kay Polk, Attorney at Law today and request a consultation to get started.

Contact Kay Polk, Attorney at Law online now for more information.