What are the Grounds for Divorce in Texas?

Divorce can be a complicated and emotionally draining process. If you have decided to divorce, or if you are even considering it, you need to understand the grounds for divorce under the Texas Family Code.

There is no such thing as being unable to secure a divorce if you want one — even over your spouse’s objections. Nevertheless, Texas recognizes three fault-based and four no-fault grounds for divorce. If you are a spouse seeking a divorce, contact a San Antonio divorce lawyer to help you decide which of these options is right for you.

Preliminary: Texas residence requirements

Texas requires either you or your spouse to have accumulated at least six months of residency in Texas and 90 days of residence in the county where the divorce was filed. There are exceptions for military families. Your sworn statement might be enough to prove residency.

You don’t have to live in Texas to file for divorce there, as long as your spouse meets residency requirements. Special conditions apply if your children don’t live in Texas.

No-fault grounds for divorce

Texas law provides one grounds for no-fault divorce:

Insupportability

“Insupportability” means irreconcilable differences. It is often the case that two spouses cannot get along with each other for reasons that are neither spouse’s fault. Alternatively, some couples resort to no-fault divorce simply to avoid airing their dirty laundry in public.

In any case, courts recognize that there is no point in trying to force people to stay together when at least one of them doesn’t want to. They will almost always grant a divorce on the ground of insupportability if at least one spouse requests it. In a sense, insupportability functions as a “get out of marriage free” card.

Fault-based grounds for divorce

Texas couples use fault-based divorce a lot less frequently than no-fault divorce. Nevertheless, fault-based divorce is not uncommon because a successful petition can move other issues in the divorce in favor of the complaining spouse.

Adultery

Adultery is a common fault-based ground for divorce. You don’t need to catch your spouse in the act of cheating to win under this ground for divorce. Family courts often accept circumstantial evidence of adultery such as hotel receipts, text messages, and eyewitness testimony. Adultery is legal, but it could significantly affect property division.

Be careful if you start dating after separating but before divorce. Courts consider sexual relationships with other people after separation but before divorce to constitute adultery.

Cruelty

“Cruelty” is a loaded word that carries different meanings for different people. Courts almost always accept physical violence, for example, as evidence of cruelty. Psychological abuse can definitely qualify as a form of cruelty. Even manipulative tactics like “gaslighting” can qualify. Typically, courts look to a pattern of cruelty rather than a single event. In severe cases, however, a single incident of cruelty might be enough.

Abandonment

Abandonment occurs when one spouse moves out of the marital home against the will of the other spouse. To qualify as a ground for divorce, the abandoning spouse must stay out of the marital home for one continuous year and not intend to return. Compare this standard with the three-year no-fault standard for separation. Courts might be sympathetic to victims of abandonment when dividing property and awarding alimony.

Imprisonment for a felony

To qualify under this ground, one spouse must be convicted of a felony, spend at least a year in prison, and fail to receive a pardon. The imprisonment of a spouse for a felony can drastically affect issues such as child custody.

Confinement in a mental institution

This ground applies if one spouse has been confined to a mental institution for the past three years. The spouse’s prognosis must be such that recovery is unlikely or relapse is likely. You will need evidence to prove confinement. Additionally, the confinement must have been continuous for the entire three-year period.

Three years of separation

To qualify under this ground, you must have voluntarily and continuously lived apart for the past three years. It is not enough to live apart — you must have abandoned the relationship. Even occasional sexual encounters with your spouse can disqualify you under this ground for divorce.

Fault-based divorce: Consequences

Marital misconduct, as established in a fault-based divorce, can affect every other issue in the divorce — child custody, child support, property division, and alimony. If you are pursuing or defending against a fault-based divorce, you are going to need a San Antonio divorce lawyer to help you.

Child custody

Marital misconduct can affect child custody determinations under certain circumstances. Suppose, for example, that one spouse asserts cruelty as a fault-based ground for divorce. If the cruelty is based on domestic violence, a court might award custody to the other spouse, even if the violence was not directed at the child.

Child support

Since domestic violence can result in a switch of child custody to the other parent, the former custodial parent would become the non-custodial parent, with a corresponding change in child support obligations. This is an indirect rather than a direct effect on child support obligations.

Property division

Adultery can affect property division if one spouse wasted marital assets on an expensive marital affair (buying gifts for their lover, taking expensive trips, renting expensive hotel rooms, and similar activities). This kind of behavior could affect property division in a big way. Adultery even without waste of marital funds could also affect property division, but in a more limited way. Other fault-based grounds for divorce might also affect property division.

Alimony (“spousal maintenance”)

Alimony is difficult to obtain in Texas under almost any circumstance. Fault-based divorce can definitely affect a Texas family court’s willingness to award alimony to a spouse.

If the spouse seeking alimony was the one who committed marital misconduct, the court might be less willing to award alimony. If the paying spouse is the one who committed the misconduct, the court might award alimony when it otherwise wouldn’t have, or it might award a greater amount or duration of alimony.

Explore your options with an experienced San Antonio divorce lawyer

Grimshaw Divorce and Child Custody Lawyers is a San Antonio divorce law firm that prides itself on its unparalleled focus, integrity, and passion. No matter what you have been through, you deserve to be treated with integrity and unwavering loyalty. Our reputation is such that we frequently serve clients throughout the state of Texas. Contact us to speak to an attorney about your case.