The Seven Grounds for Divorce in Texas and Why They Matter

By Alissa Castro

At some point or another, you’ve probably heard the phrase – “That’s grounds for divorce!” Whether it was on T.V. or during a couple’s argument you accidentally overheard, “grounds for divorce” has long been a part of the fabric of America. But what are the grounds for divorce, and why do they matter? It all depends on where you file for divorce.

What are the grounds for divorce in Texas?

In Texas, there are seven grounds for divorce spelled out in the family code. These include both fault grounds and no-fault grounds. That’s right – you don’t have to prove fault grounds in order to get a divorce in Texas. However, the grounds on which you base your request for divorce may affect the outcome of your divorce settlement.

Sound confusing? Let’s break it down, starting with the three no-fault grounds, where neither party is at fault for the marriage breaking down, but circumstances exist where the marriage is no longer viable for one or both parties. Texas no-fault grounds include:

Insupportability.

These grounds are commonly referred to as irreconcilable differences. To prove insupportability, you have to show that the marriage is insupportable because of a discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.

Insupportability is one of the most common grounds people use to file for divorce in Texas. In layman’s terms, the person has filed because they no longer see eye-to-eye with their spouse or living with the spouse has become intolerable for some reason.

Living apart.

If two spouses have lived apart without cohabitating for three years or more – at the time of the trial – that could support living apart grounds for divorce. In these types of cases, the court typically views the arrangement as something both parties agreed to, based on the fact that they have lived apart for so long.

Living apart grounds can play a role in the just and right division of the estate. For example, say one party claims she hasn’t seen her spouse in over five years, and she doesn’t know where to find him. The court might award her everything in her possession, provided she meets certain conditions, such as taking steps to serve him papers, even if that means serving a notice in the newspaper.

Confinement to a mental hospital.

People become mentally incompetent for a variety of reasons, whether due to mental illness, as the result of an accident or another cause. What’s key here is that the party must have been confined for at least three years and the severity of their mental disorder is to the degree that it’s unlikely to improve and, if it does, relapse of the disorder is very likely.

While confinement may be grounds for divorce, the statute was also put in place to help protect the confined person’s interests and the just and right division of property. The court will likely appoint a guardian ad litem to represent the person who is confined. If you say, “Oh well, they’re confined, so I should get everything in the estate,” you probably won’t be granted the divorce!

The role of fault-grounds in Texas divorce

The difference between no-fault grounds and fault grounds is pretty straightforward. With fault grounds, someone is actually found at fault for the divorce.

Again, you don’t have to prove fault grounds to get a divorce in Texas. However, if you claim certain fault grounds – like adultery – and the judge doesn’t buy your argument, he or she could still grant your divorce based on other no-fault grounds, like insupportability. Conversely, the judge could grant the divorce based on fault grounds that surface during the case – say cruelty – even if you filed on no-fault grounds of insupportability.

There are four different fault grounds in Texas. Let’s break them down, starting with:

Cruelty.

In Texas, the grounds for cruelty are simply defined as cruel treatment of the spouse that was of such a nature that it renders further living together insupportable. The vagueness of this definition certainly leaves that section of the code wide open for interpretation, which it has been. Cruelty is a relative term that is determined based on case-specific facts, so it’s not going to be the same for everybody. For example, a devout Christian may find some form of behavior cruel that another person may not.

Cruelty typically needs to be willful, persistent infliction of suffering and can be mental or physical. However, there are some cases where one incident is so egregious – say a severe beating – or there is an accumulation of smaller, cruel acts over time that could support cruelty grounds. An unsuccessful attempt to reconcile doesn’t bar a spouse from asserting cruelty either.

Adultery.

Simply put, if you can prove your spouse cheated on you, then you typically have grounds for divorce in Texas. You don’t have to show a videotape of your spouse cheating, but you do need to provide positive proof. Adultery can be proven in a lot of circumstantial ways.

It’s also important to keep in mind that acts of adultery that occur after you file your petition and are no longer cohabitating can support a fault-based judgment against the adulterer. That’s why it is typically best to stay celibate and not get into a relationship during a divorce. Otherwise, questions could be raised about how community funds are being used – i.e., gifts, jewelry, loans and trips for a lover – which could be subject to a reimbursement claim for fraud. This all goes to the just and right division of the marital estate, where one party may get a larger portion of the estate, a home or other assets to compensate for the other party’s misuse of community monies.

Felony conviction.

A felony conviction can serve as fault grounds for divorce if the spouse is convicted of a felony during the marriage and in prison for at least one year in a department of criminal justice or a state or federal penitentiary and they haven’t been pardoned.

However, if the state’s entire case against the convicted felon was based on his or her spouse’s testimony, a divorce cannot be granted on felony conviction grounds. The court may still grant the divorce based on insupportability or cruelty but not due to the conviction. Domestic violence is another factor, and in some cases, it may be possible to get spousal maintenance due to abuse that has occurred.

Abandonment.

To prove abandonment, two things need to have occurred. The spouse must have left voluntarily, and they must have had the intent to abandon the spouse who filed. Intent to abandon typically means a spouse has an intention to not to return to live with his or her spouse.

The abandonment must also be continuous for a one-year period. So, say your spouse abandons you and comes back home for a few nights, that could disqualify the one-year period. However, if the returning spouse has no intent to continue living together with you after the brief stay, that could be enough to support abandonment.

A couple of additional thoughts about divorce grounds in Texas

With so many options for grounds for divorce, you may be wondering how often fault grounds come into play in Texas. The truth is, the majority of cases in Texas are no-fault-divorces. While the reasons for this vary, one reason may be that people don’t want their dirty laundry aired in public, especially in their legal paperwork.

For people who don’t want to get divorced, it’s important to know that no-fault grounds are an option for Texans, and there’s not much you can do to stop a divorce if your spouse is determined to get one. Instead of digging in your heels, it’s usually better to participate in the process to help ensure the divorce and property settlement works out more favorably for you.

 

Alissa Castro is a family law attorney with experience in a wide variety of legal venues and is committed to obtaining the best results for her clients. She is an active member of the Dallas Association of Young Lawyers and has donated her services to several charitable causes including the Dallas Volunteer Attorney Program, Mississippi Volunteer Lawyer Project and Catholic Charities. To learn more about divorce and child custody options in Dallas and Collin Counties, please call 214-306-8441 to speak confidentially with a knowledgeable and considerate member of the Connatser Family Law team.

 

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