Grounds for Divorce in Texas
Texas, like many other states, allows spouses to file "no fault" divorces. However, pleading and proving a fault ground is often done because fault is often relevant to the court's final judgment concerning other issues. Pleading a fault ground as an additional or alternative ground for divorce generally permits the petitioner to introduce possibly favorable evidence related to the division of community property and child custody. When a fault ground is properly pleaded and proven, the court is very likely to consider the fault when awarding property, custody, and spousal maintenance.
“No Fault” Grounds
Insupportability: The marriage has become so insupportable due to discord or conflict of personalities that it destroys the entire point of being married and prevents any reasonable expectation of reconciliation. This is a very low bar and requires relatively little in terms of evidentiary support.
Living Apart: The spouses have lived apart without cohabitation for at least three years prior to the granting of the divorce–not the filing of the divorce suit.
Confinement in Mental Hospital: The respondent has been confined in a state or private mental hospital in any state for at least three years and the respondent's mental disorder is so severe that recovery is unlikely or that, if recovery occurs, a relapse is probable.
“Fault” Grounds
Cruelty: A divorce may be granted in favor of the petitioner if the respondent is found guilty of cruel treatment of a nature that renders further living together insupportable. Cruelty extends beyond physical violence. This ground includes severe mental abuse that is harmful to the health and pride of the petitioner to the extent that the spouses' further living together is unendurable. Courts also have found that adultery and false accusations of adultery may constitute cruelty.
Adultery: Adultery is the voluntary sexual intercourse of a married person with one not the spouse. Adultery is not limited to actions committed before the parties separated. Sex after separation but before entry of the final divorce decree is adultery. If proven, even by circumstantial evidence, a divorce may be granted in the petitioner's favor.
Conviction of Felony: If the respondent 1) has been convicted of a felony, 2) has been imprisoned for at least one year, and 3) has not been pardoned, then a divorce may be granted in the petitioner's favor. However, this ground cannot be used against a respondent who was convicted on the testimony of the petitioner.
Abandonment: If the respondent left the petitioner with the intent to abandon and remained away for at least one year, then a divorce may be granted in the petitioner's favor. This ground requires proof of intent not to return. Separation for one year might not constitute abandonment. Additionally, where the petitioner consents to the respondent's departure, there is no abandonment. Finally, the requisite one-year period is not necessarily disturbed by short visits during the separation.
Defenses
Condonation: Condonation may be a defense to a fault ground where the court finds there is a reasonable expectation of reconciliation and the pleadings and evidence show that the respondent regretted his decision and was forgiven by the petitioner.
Mental Illness: If mental illness was the cause of the respondent's commission of acts that the petitioner relies upon as the grounds for divorce, then the respondent may assert that mental illness as a defense. Keep in mind, this could not be used as a defense to the "no fault" ground of confinement in a mental hospital.
Note that recrimination is not a defense to adultery. This means that even if the petitioner committed adultery and files for divorce on the basis of the respondent's infidelity, the respondent’s defense cannot be "He did it first." However, the respondent may counter using adultery as a ground in her own petition for divorce.
If you are contemplating filing for divorce and need help understanding the process, please schedule a consultation today. Do not rely on this post as legal advice. This post does not create an attorney-client relationship between the Firm and the reader. Do not act in reliance on the contents of this post without seeking the advice of counsel.