Navigating the dissolution of a marriage is one of the most stressful experiences a person can face. In the State of Texas, the legal landscape surrounding divorce—formally known as "dissolution of marriage"—is unique. While many states have moved toward strictly no-fault systems, Texas maintains a hybrid model that allows for both no-fault and fault-based grounds.
For readers of Lexguides, understanding these grounds is not just a matter of legal curiosity; it is a strategic necessity. The grounds you choose to cite in your petition can significantly influence the court’s decisions regarding the division of property, spousal maintenance, and even child custody. This guide provides a detailed legal overview of the common grounds for divorce in the Lone Star State.
Introduction to Texas Divorce Law
Texas is governed by the Texas Family Code, which outlines the specific parameters for ending a marriage. To file for divorce in Texas, at least one spouse must have been a resident of the state for the preceding six months and a resident of the county where the suit is filed for the preceding 90 days.
The most critical decision a petitioner makes is determining whether to file for a "no-fault" divorce or a "fault-based" divorce. While a no-fault divorce is generally faster and less adversarial, alleging fault can be a powerful tool if one spouse’s misconduct led to the breakdown of the marriage. In Texas, the court is required to make a "just and right" division of community property. If fault is proven, a judge may award a disproportionate share of the marital estate to the "innocent" spouse.
Key Legal Points: No-Fault vs. Fault Grounds
1. Insupportability (No-Fault)
The vast majority of divorces in Texas are filed on the ground of insupportability. This is the Texas equivalent of "irreconcilable differences." Under Texas Family Code § 6.001, a divorce may be granted if the marriage has become "insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation."
Benefit: Neither party has to prove the other did something wrong.
Drawback: It usually leads to a more standard 50/50 or near-equal split of community property.
2. Cruelty (Fault-Based)
Under § 6.002, a court may grant a divorce in favor of one spouse if the other is guilty of cruel treatment toward the complaining spouse of a nature that renders further living together insupportable. "Cruelty" is not limited to physical violence; it can include persistent mental abuse, emotional neglect, or severe financial sabotage.
3. Adultery (Fault-Based)
Adultery remains a valid legal ground for divorce in Texas (§ 6.003). While it is no longer a criminal offense, it carries heavy weight in civil court. Proving adultery requires "clear and convincing evidence," which can include text messages, bank statements, or private investigator reports. If proven, the court may award the wronged spouse a larger portion of the community assets to compensate for the "waste" of marital funds spent on the extramarital affair.
4. Conviction of a Felony (Fault-Based)
A spouse may seek a divorce if the other party has been convicted of a felony, imprisoned for at least one year in the Texas Department of Criminal Justice or a federal penitentiary, and has not been pardoned (§ 6.004). However, this ground is not available if the spouse was convicted based on the other spouse’s testimony.
5. Abandonment (Fault-Based)
To claim abandonment (§ 6.005), the complaining spouse must prove that the other spouse left with the specific intent of abandonment and remained away for at least one year. This is less common today, as most people opt for insupportability to avoid the one-year waiting requirement.
6. Living Apart (Fault-Based)
If a husband and wife have lived apart without cohabitation for at least three years, either spouse may file for divorce on this ground (§ 6.006). This is often used in cases of long-term separation where the parties never bothered to finalize the legal paperwork.
7. Confinement in a Mental Hospital (Fault-Based)
A divorce may be granted if a spouse has been confined in a state or private mental hospital for at least three years and it appears that the degree of the disorder is such that adjustment is unlikely or that a relapse is probable (§ 6.007).
Step-by-Step Process of a Texas Divorce
The process of securing a divorce in Texas follows a strict procedural timeline. Even in an uncontested "no-fault" divorce, the law requires specific milestones to be met.
Step 1: Filing the Original Petition for Divorce
The process begins when one spouse (the Petitioner) files an "Original Petition for Divorce" with the district court. This document outlines the grounds for divorce (e.g., insupportability) and requests the court’s intervention in matters like property division and child conservatorship.
Step 2: Notice and Service of Process
Once filed, the other spouse (the Respondent) must be legally notified. This is typically done through "Service of Process," where a process server or constable delivers the papers. Alternatively, if the divorce is amicable, the Respondent may sign a "Waiver of Service," acknowledging they have received the petition without requiring formal delivery.
Step 3: The 60-Day Waiting Period
Texas law mandates a "cooling-off" period. A court cannot grant a final divorce decree until at least 60 days have passed since the date the petition was filed. There are narrow exceptions to this rule, primarily involving cases of family violence or protective orders.
Step 4: Temporary Orders (If Necessary)
In many cases, couples cannot wait 60 days to decide who stays in the house or who pays the bills. A "Temporary Orders Hearing" can be held shortly after filing to establish rules for child support, visitation, and the use of marital assets while the divorce is pending.
Step 5: Discovery and Mediation
Before a trial or final settlement, both parties engage in "discovery," the legal process of exchanging information (financial records, emails, etc.). Texas courts frequently require couples to attend mediation. In mediation, a neutral third party helps the couple reach an agreement without the need for a judge’s intervention.
Step 6: Finalizing the Decree
If an agreement is reached, a "Final Decree of Divorce" is drafted and signed by both parties and the judge. If no agreement is reached, the case goes to trial, where a judge (or sometimes a jury) decides the outcome based on the evidence presented regarding the grounds for divorce.
Conclusion
Choosing the right grounds for divorce in Texas is a decision that should not be made in a vacuum. While "insupportability" is the path of least resistance, alleging fault—such as cruelty or adultery—can be a vital strategy for protecting your financial future, especially in high-asset cases.
The Texas legal system is designed to ensure a "just and right" outcome, but the burden of proof lies with the parties involved. Because the implications of these laws are so profound, it is highly recommended that anyone considering a divorce in Texas consult with a board-certified family law attorney.
At Lexguides, we empower you with knowledge, but the complexities of the Texas Family Code require a steady professional hand to navigate successfully. By understanding your options today, you set the stage for a more secure tomorrow.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Please consult with a licensed attorney in your jurisdiction for advice regarding your specific legal situation.
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