Fault and no-fault grounds for divorce in Texas

Texas is a no-fault state that never got rid of fault. You can end a marriage without accusing anyone of anything, and you can also stand in front of a judge and prove your spouse did something that should cost them money. Both doors are open, and most people should walk through the first one.

Knowing why the second door exists is what tells you whether it is worth the cost.

What are the grounds for divorce in Texas?

There are seven, and one of them handles the overwhelming majority of cases.

• Insupportability. Family Code section 6.001 lets the court grant a divorce without regard to fault when the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marriage and prevents any reasonable expectation of reconciliation. In plain terms: it is over and it is not coming back.

• Cruelty. Section 6.002 covers cruel treatment of a nature that makes living together insupportable.

• Adultery. Section 6.003 is one sentence long. The court may grant a divorce in favor of one spouse if the other committed adultery.

• Felony conviction. Under section 6.004, a spouse convicted of a felony during the marriage, imprisoned at least a year, and not pardoned. The court cannot use this ground if the conviction rested on the other spouse's testimony.

• Abandonment. Section 6.005 requires that the spouse left with the intention of abandonment and stayed away at least a year.

• Living apart. Section 6.006 covers spouses who have lived apart without cohabitation for at least three years.

• Confinement in a mental hospital. Section 6.007 requires at least three years of confinement and a finding that adjustment is unlikely or relapse is probable.

Do you have to prove fault to get a divorce in Texas?

No. Insupportability is enough on its own, and your spouse cannot block the divorce by disagreeing that the marriage is over. One spouse saying it is over makes it over.

That is worth sitting with if you are the one who does not want this. Texas will not require your consent, and contesting whether the marriage is insupportable is not a strategy. Your leverage is in the property division, the possession schedule, and support, which is where the timeline chapter picks up.

Why would you plead fault in a Texas divorce?

Because Texas does not divide the community estate down the middle. Family Code section 7.001 tells the court to divide the estate "in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage." Fault is one of the things a judge may weigh in deciding what is just and right.

In practice, that means a proven adultery or cruelty claim can support a division that runs 55/45 or further, especially when the conduct also cost the community money. It is not a punishment fee with a fixed rate. It is one more thumb on a scale that already has earning capacity, health, custody of the children, and separate property estates on it.

Fault also shows up in spousal maintenance. Marital misconduct, including adultery and cruel treatment, is one of the factors a court weighs under Family Code section 8.052 when it sets the amount and duration of maintenance. The maintenance chapter covers the eligibility gate you have to clear before those factors matter at all.

Does adultery affect property division in Texas?

It can, in two different ways, and the second one is usually worth more than the first.

The first is the just-and-right analysis above. A judge who believes one spouse blew up the marriage has discretion to reflect that in the split.

The second is money. If your spouse spent community funds on the affair, that is not a moral argument, it is a dollar figure. Family Code section 7.009 tells the court that when a spouse has committed actual or constructive fraud on the community, it must calculate how much the community estate was depleted, reconstitute the estate at that higher value, and divide the reconstituted estate. The court can award a money judgment against the spouse who did it.

Proving that claim is an accounting exercise, not a speech. It means pulling the statements and finding the hotel charges, the second phone line, the rent on an apartment nobody mentioned, and the transfers to an account that only shows up once. The discovery chapter covers how you get those records and what to do with them.

What does pleading fault cost you?

Filing on fault has consequences that show up before any judge weighs anything.

• It makes the case contested. A fault petition invites an answer, a counterpetition, and discovery about the allegation. The quiet 60-day agreed divorce is off the table.

• You have to prove it. An accusation in a pleading is not evidence. Cruelty and adultery are proved with documents, testimony, and sometimes an investigator, and all of that is billable.

• It hardens the other side. People who might have settled the house will litigate the house once they have been publicly accused.

• It can be pleaded in the alternative. Many Texas petitions allege insupportability and add a fault ground, which preserves the argument without committing to a trial on it.

Talk about that trade honestly before you file. A fault ground that gets you an extra five points of a modest estate is not worth $40,000 in fees to prove.

Can your spouse stop a divorce in Texas?

Not by refusing to sign, not by refusing to be served, and not by disagreeing that the marriage is insupportable. What they can do is slow it down, and Texas gives them room to do that through discovery disputes, continuances, and contested temporary orders.

There are two real defenses in the statute, and they are narrow. A court may decline a divorce on the living-apart ground or the confinement ground in some circumstances, and cases occasionally turn on whether the parties resumed living together. None of these keeps an insupportable marriage alive.

If your spouse is stalling, the practical answer is usually to set a hearing rather than to argue about grounds. The contested divorce chapter covers how temporary orders take the pressure off while the rest of the case grinds forward.