Introduction

This article discusses the various grounds for divorce; both fault-based and no-fault.

Texas allows parties to divorce without any fault on either party. This means that divorce can be granted simply because the parties no longer desire to be married. This wasn’t always the case. In the past, one or both parties were required to allege some fault-based grounds for divorce to allow the Court to grant their request for a divorce. States began adopting no-fault divorce laws in 1970, beginning in California with a law signed by then-Gov. Ronald Reagan, himself a divorcé. By the mid-1980s, all but New York had signed no-fault divorces into law. New York became the last to allow couples to divorce by mutual consent in 2010.

What are Grounds for Divorce?

Even though Texas allows a divorce by mutual agreement, there still must be some grounds for the divorce alleged in the case to give the Court the legal ability to grant the divorce. The Texas Family Code provides seven grounds for divorce:

insupportability,
cruelty,
adultery,
conviction of a felony,
abandonment,
living apart, and
confinement in a mental hospital.

-Tex. Fam. Code §§6.001-6.007.

The grounds for divorce apply to both ceremonial (formal) and informal (common-law) marriages entered into in Texas or in another state or foreign country. The seven grounds for divorce can be divided into two categories:

no-fault grounds and
fault grounds.

No Fault Grounds

Insupportability, living apart, and confinement in a mental hospital are all considered no-fault grounds for divorce. A divorce based on a no-fault ground can be granted without proof that one of the spouses was at fault for the breakup of the marriage.

The intent of the Legislature in enacting no-fault legislation was to avoid the necessity of presenting sordid and ugly details of either spouse’s conduct before the Court to obtain a divorce. Because of its easy burden at trial, the no-fault ground of insupportability is pleaded as the sole or alternative ground in almost all cases and is the basis for most divorces.

Insupportability

For a divorce to be granted on the no-fault ground of insupportability a spouse must establish that

(1) the marriage has become insupportable because of discord or conflict,

(2) the discord or conflict destroys the legitimate ends of the marriage, and

(3) there is no reasonable expectation of reconciliation.

Although a no-fault divorce eliminates the burden of establishing which spouse was at fault for rendering the marriage insupportable, the person requesting a divorce on that ground must still establish all three elements.

Living apart.

A divorce may be granted in favor of either spouse on the no-fault ground of living apart. A divorce may be granted on this ground if the spouses have lived apart without cohabitation (living together) for at least three years. The three-year requirement must be satisfied before the time of trial, not before filing the petition.

Confinement in mental hospital.

A divorce may be granted in favor of either spouse on the no-fault ground that one of the spouses is confined in a mental hospital. A divorce may be granted on this ground if a spouse has been confined in a mental hospital for at least three years and it appears that the spouse’s mental disorder is of such a degree and nature that he or she is not likely to adjust, or that if he or she does adjust, a relapse is probable.

Fault grounds.

Cruelty, adultery, felony conviction, and abandonment are all considered fault grounds for divorce. A divorce based on a fault ground means that one of the spouses was at fault for the breakup of the marriage. Fault grounds are typically pleaded in divorce cases to gain a greater share of the community estate and are used by the court as a factor in determining the amount, duration, and manner of any spousal-maintenance payments that are awarded.

Cruelty.

A divorce may be granted in favor of one spouse on the fault ground that the other spouse’s cruel treatment of the complaining spouse was of such a nature that it rendered further living together insupportable.

“Insupportable” under Family Code §6.002 means unendurable, insufferable, intolerable, and incapable of being borne. Cruel treatment is a relative term, and each case must be determined on its own facts. Cruel treatment requires willful and persistent infliction of unnecessary suffering; mere trivial matters or disagreements are not enough.

The suffering may be mental or physical and may consist of a single act or many different acts or combinations of bad acts, including acts occurring after separation. While some individual acts standing alone may not constitute cruel treatment, the accumulation of the acts can be enough to justify allegations of cruelty. A spouse’s unsuccessful attempt to reconcile does not bar the spouse from asserting acts of cruelty that occurred before the attempt to reconcile.

Adultery.

A divorce may be granted in favor of one spouse on the fault ground that the other spouse has committed adultery. Adultery is defined as “the voluntary sexual intercourse of a married person with one not the husband or wife of the offender.” Although adultery can be established by direct or circumstantial evidence, clear and positive proof is necessary; mere suggestion and innuendo are insufficient. Acts of adultery committed after separation can support a judgment for divorce under Family Code §6.003.

Felony conviction.

A divorce may be granted in favor of one spouse on the fault ground that the other spouse, during the marriage, was convicted of a felony, was imprisoned for at least one year in the Texas Department of Criminal Justice or another state or federal penitentiary, and has not been pardoned. A divorce cannot be granted on this ground against a spouse who was convicted solely on the testimony of the spouse petitioning for divorce.

Abandonment.

A divorce may be granted in favor of one spouse on the fault ground that the other spouse voluntarily left the complaining spouse with the intention of abandonment and remained away for at least one year.

Separation from the complaining spouse must be voluntary; that is, it must be done willfully by design or intention. There is no abandonment if (1) the separation was procured by the complaining spouse or done at her request, (2) the separation was by the spouses’ agreement, or (3) the departing spouse separated from the complaining spouse with the complaining spouse’s consent.

Closing

As you can see, there are many different grounds that will support a divorce in the State of Texas. From fault based to non-fault grounds, there must be an allegation contained in the petition requesting the divorce for the Court to grant a divorce.

If you have any questions regarding the grounds for divorce, division of marital property or other family law issues, please feel free to call us at 713-999-9398, email us at jmoon@moonlawfirm.com or come by the office at 1111 Fairmont Parkway, Pasadena, Texas 77504. I look forward to hearing from you and working with you on your case.