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What does it mean to have fault/no-fault divorce divorce?

What does it mean to have fault/no-fault divorce divorce?

In Texas, a Petitioner for divorce must assert that there is at least one ground for divorce.  In years past, Texas required that a party was at fault in order to acquired divorce.

The most common fault based grounds for divorce recognized in Texas include the following:

  1. Cruelty- that the other spouses cruel treatment was of such a nature that it rendered further living together unendurable, insufferable, intolerable or incapable of being borne.
  2. Adultery
  3. Felony conviction- spouse was convicted of a felony during the marriage and imprisoned for at least one year.
  4. Abandonment- spouse voluntarily left the spouse with the intention of abandoning the spouse and remained away for at least one year.

Texas now does not require a party to be at fault to allow a divorce to proceed; however, even in a no fault state the petitioner must articulate the grounds for divorce.  The following are no-fault based grounds for a divorce:

  1. Insupportability- the marriage has become insupportable because of discord or conflict, the discord or conflict destroys the legitimate ends of the marriage and there is no reasonable expectation of reconciliation.
  2. Living Apart- spouses have lived apart without cohabitation for at least three years.
  3. Confinement in a mental hospital- one spouse is confined to a mental hospital for at least three years and it appears that the spouse will not recover or is likely to relapse.

Why should I allege fault if you don’t have to prove someone is at fault to get a divorce? 

Divorce can still be granted in Texas based on fault even though Texas is a no-fault divorce state.  The most common initial reason a client may choose to allege fault is so that he or she has an opportunity to air the dirty laundry, get back at the other spouse, or to expose their spouse’s wrong doing.  This is not a good reason to allege a party is at fault.  Although this may provide some emotional release, it will also likely result in nastier litigation and increased costs for the divorce.There are three good reasons, in my opinion, why one spouse may want to allege that the other party is at fault.

First, a spouse may want to allege fault if they think that the other party’s fault is relevant for the court when making decisions regarding conservatorship, possession or access to children.  The fact that a party treated their spouse cruelly, or was unfaithful could obviously have a lot of bearing for the court when determining a parent’s moral code.

The second reason that a party may want to allege fault is that the court may consider fault when dividing community property.  The court is charged with dividing assets in a manner that is “just and right”.  If the court believes that the divorce is due to one party’s misconduct, the court should award more assets to the party who is not at fault.

Third, if the court determines that a spouse is eligible for spousal maintenance (alimony), the court may look at whether fault was a factor to determine the amount of spousal support, the duration of spousal support and manner of payment of spousal support.