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No-Fault Versus Fault-Based Divorce: Why Does It Matter?


Marriage is a legal relationship that states have the authority and responsibility to regulate. Historically, the marital relationship was considered to be a sacred union that could only be dissolved in extreme situations, many of which involved spousal misconduct. Today, most states—including Texas—recognize how personal incompatibility can justify divorce, even if neither spouse is at fault.

No-Fault Divorce

Most divorces are granted on a no-fault basis, meaning that the party seeking a divorce is not required to prove that their spouse committed some type of wrong.

The Texas Family Code lists the following no-fault grounds for divorce:

  • Insupportability: Texas Family Code § 6.001 allows parties to obtain a divorce without regard to fault if the marriage has become insupportable because of discord and there is not a reasonable change of reconciliation.
  • Living Apart: Under Texas Family Code § 6.006 a married couple living apart without cohabitation continuously for at least three years can obtain a divorce.
  • Confinement in Mental Hospital: Pursuant to Texas Family Code § 6.007, one can obtain a divorce if their spouse has been confined to a mental hospital for at least three years due to a mental disorder from which they are unlikely to recover.

Although no-fault grounds for divorce do not require evidence of wrongdoing on the part of either spouse, such grounds still require proof that the marriage satisfies the elements for the specific ground that the plaintiff alleged in their initial pleadings.

For example, a divorce based on insupportability grounds requires proof that the parties have irreconcilable differences, which can come in the form of an affidavit or sworn testimony stating, “There is no hope of reconciliation between me and my spouse.” Given how easy it is to evidence insupportability, it is the most common ground for divorce.

In contrast, the no-fault grounds of living apart and confinement in a mental hospital may warrant additional proof beyond the parties’ testimony. For example, evidence that the defendant has a mental disorder from which they are unlikely to recover may come in the form of medical records.

The pleadings in a divorce case can allege multiple grounds for divorce. However, the court may grant a divorce based only on proving one ground for divorce. Naturally, virtually all divorces include insupportability as a ground for divorce due to its relative ease in proving.

Fault-Based Divorce

Although instances of asserting a fault-based ground for divorce has diminished since no-fault divorce was introduced, courts still have the authority to grant divorces on such grounds. However, it is important to understand these grounds for divorce before alleging one in a petition for divorce. e.

Texas law continues to recognize the following fault-based divorce grounds:

  • Cruelty: Under Texas Family Code § 6.002, a court will grant a divorce in cases where the parties can no longer live together due to the cruel treatment of one spouse against the other.
  • Adultery: Texas Family Code § 6.003 provides that a divorce is available in cases where one spouse had sex someone other than their spouse.
  • Felony Conviction: Per Texas Family Code § 6.004, a court may grant a divorce to a person if their spouse was imprisoned for at least one year for a felony conviction that has not been pardoned.
  • Abandonment: Texas Family Code § 6.005 authorizes courts to grant divorces where one spouse has left the other spouse for at least one year with the intention of never returning.

The petitioner must submit sufficient evidence demonstrating the respondent committed the specific fault alleged. For instance, evidence of family violence—such as criminal convictions and police reports—may be sufficient in proving the fault-based divorce ground of cruelty. Cruelty need not manifest through physical abuse, as mental and emotional abuse can suffice. Moreover, facts evidencing adultery can support a divorce based on cruelty.

The advent of no-fault divorce effectively minimized the role of fault-based divorce grounds. Yet, courts have the discretion to grant a divorce based on a party’s alleged fault. As a practical matter, a divorce attorney would not risk obtaining a divorce altogether by alleging only a fault-based ground when there would virtually be no such risk if they also included the no-fault ground of insupportability.

However, some courts have factored proof of a spouse’s fault when determining the just and right division of community property. Additionally, courts can consider the wrongful behavior of a spouse when determining the conservatorship of the parties’ minor children—also known as child custody—or even in fashioning orders for spousal maintenance.

Get a Legal Consultation About Your Case at Coker, Robb & Cannon, Family Law

If you are planning on getting a divorce, you should understand the extent of your rights and responsibilities. At Coker, Robb & Cannon, Family Lawyers, our distinguished attorneys have committed years of their practice to handling various legal disputes under Texas family law, including divorces.

To schedule a case evaluation with one of our lawyers, call us at (940) 293-2313 or visit us online today.