The Seven Grounds for Divorce in Texas
by Taylor Joeckel
In Texas, a spouse filing for divorce must allege at least one of the seven grounds for divorce as laid out in Texas Family Code Sections 6.001-007 to be entitled to a divorce. While there are fault grounds due to a spouse’s bad acts, such as adultery or cruelty, there are also no-fault grounds where no blame is assigned to either party, rather the parties, or a party, simply no longer wish to be married.
As the grounds on which you base your request for divorce may affect the outcome of your divorce settlement or trial, it is important to understand all seven grounds and the difference between no-fault and fault grounds. Here is the break down of the seven grounds for divorce:
The Three No-Fault Grounds for Divorce
No-fault divorce allows courts to grant divorces on allegations of marital breakdown due to the fault of neither party.
Commonly referred to as irreconcilable differences, insupportability is one of the most common grounds used to file for divorce in Texas. To prove insupportability, you must show that the marriage is insupportable due to discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.
In layman’s terms, this ground simply means the spouses no longer see eye-to-eye and are no longer compatible. For the ground of insupportability, evidence is not required to show the nature of the conflict between the spouses, any effort to fix it, or who is at fault.
2. Living Apart
The court may grant a divorce in favor of either spouse if the spouses have lived apart without cohabitation for at least three years. Cohabitation is defined as living together. In order to prove the ground of living apart, the spouse alleging this ground must provide testimony and/or evidence regarding the living arrangement of the parties for the last 3 years and confirm they have not lived together during that time.
3. Confinement in a Mental Hospital
The third no fault basis for divorce is confinement in a mental hospital. The court may grant a divorce in favor of one spouse if at the time the suit is filed, the other spouse has been confined in a state mental hospital or private mental hospital for at least three years and it appears that the severity of the mental disorder is to the degree that it is unlikely to improve and, if it does, relapse of the disorder is likely.
Should you claim confinement of your spouse in a mental hospital as the ground for your divorce, the court will likely appoint a guardian ad litem to represent your confined spouse in order to protect his/her interests and ensure the just and right division of property. This is to prevent the confined spouse from being taken advantage of in the divorce proceedings.
The Four Fault Grounds for Divorce
As the name suggests, with fault grounds, a spouse is alleging the other spouse is at fault for the divorce in an attempt to obtain a greater share of the marital estate and/or to assist the Court in factoring in the amount, duration, and manner of spousal support.
If you claim a fault ground in your divorce, you must prove the ground on which you are claiming. For example, if you claim the ground of adultery, you must prove your spouse’s infidelity. However, if you claim certain fault grounds and the court does not buy your argument due to insufficient testimony and/or evidence, your divorce can still be granted based on no-fault grounds, like insupportability.
The court may grant a divorce in favor of one spouse if the other spouse is guilty of cruel treatment towards the other spouse of a nature that renders further living together insupportable. As the family code leaves the word cruelty open to interpretation, it is determined on a case-by-case basis. Cruel treatment can be physical or emotional in nature and can be the result of one egregious incident or a pattern of abusive behavior over time.
The most common fault-based ground for divorce is adultery. Simply put, if you can prove your spouse was unfaithful to you, then you have the ability to allege adultery as the ground for divorce. While you do not have to catch your spouse in the act of having sexual intercourse with another person, you do need to provide sufficient proof that your spouse is cheating in some circumstantial way.
While the act of adultery does not have the pendulum swinging effect in the faithful spouse’s favor today as in years prior, pleading adultery is imperative if the unfaithful spouse has expended community funds or other assets on a paramour. If community funds are being used on a paramour for gifts, jewelry, loans, vacations, etc., the innocent spouse may have a reimbursement claim for fraud and be entitled to a larger percentage of the community estate as a result.
It is also important to understand that acts of adultery can occur after a petition for divorce is filed even if the spouses are no longer cohabitating. Texas does not have legal separation and you are not divorced until a final decree of divorce is signed by the judge. Therefore, it is not recommended to start actively or openly dating or sharing a bed with anyone other than your spouse until your divorce is finalized.
6. Conviction of Felony
The court may grant a divorce in favor of one spouse if during the marriage the other spouse is convicted of a felony and in prison for at least one year in a department of criminal justice or a state or federal penitentiary and the spouse has not been pardoned. However, a divorce cannot be granted on felony conviction grounds if the spouse was convicted on the testimony of the other spouse. For example, if the spouse is convicted of a felony for domestic assault based on the testimony of the other spouse, the court may still grant the divorce based on insupportability or cruelty, but not due to the conviction.
To prove abandonment, a spouse must show that the spouse left the other spouse with the intention of abandonment and remained away for at least one year continuously. The intent to abandon is the key element to this ground and there must be a clear intent to leave and not return to live with the abandoned spouse.
While the majority of cases in Texas are no-fault divorces, proving fault grounds for divorce can be an important and complicated process, and you should seek advice from an experienced divorce attorney about your case. If you are contemplating divorce, contact family law attorney Taylor Joeckel or any of our other KoonsFuller attorneys located in Dallas, Denton, Houston, Plano, or Southlake/Fort Worth. We take great pride in representing our friends and neighbors throughout the State of Texas. We hope that you give us the opportunity to represent you and your family.