However, in appropriate cases, a spouse seeks divorce based on the other spouse’s fault in causing the breakup of the marriage.
Fault Divorce Grounds
There are four fault grounds for divorce in Texas:
- Conviction of a Felony
The spouse seeking divorce on one (or more) of those fault grounds must provide proof of misconduct by the other spouse to establish that fault.
But it is important to note that each law authorizing a fault ground for divorce begins with “The court may grant a divorce in favor of one spouse if…”
That word “may” is key. Even if a spouse proves that the other spouse committed one of these fault grounds for divorce, the court can grant the divorce on other grounds.
The complaining spouse generally has to tie the misconduct to the breakup of the marriage.
I review each fault ground in more detail below.
Cruelty is a relatively rare ground for divorce these days, however, the Texas Family Code provides that:
The court may grant a divorce in favor of one spouse if the other spouse is guilty of cruel treatment toward the complaining spouse of a nature that renders further living together insupportable.TFC Section 6.002
To rise to the level of cruel treatment necessary to support a finding granting divorce on the grounds of cruelty, a spouse must show that the other spouse’s conduct rises to a level sufficient to render the couples’ living together insupportable.
“Insupportable” in this context, as opposed to no fault divorce, means that one spouse’s actions rendered the couple’s living together incapable of being borne, unendurable, insufferable, or intolerable.
Mere trivial matters or disagreements do not support a divorce on the grounds of cruel treatment.
While physical abuse can support a finding of cruelty, it is not necessary.
The Texas Family Code provides that:
The court may grant a divorce in favor of one spouse if the other spouse has committed adultery.TFC Section 6.003
Adultery means voluntary sexual intercourse by a married person with someone who is not the spouse.
It is always important for spouses in a divorce to remember that a court can grant a divorce based on adultery even if that conduct occurred after the spouses separated.
A party is not required to provide direct evidence of adultery to prove adultery as a ground for divorce.
A party may prove adulterous conduct through circumstantial evidence so long as you can show that there is clear and positive proof of adultery.
In other words – you don’t need a smoking gun to prove adultery – just enough evidence to make it clear to any reasonable person that adultery likely occurred.
Conviction of a Felony
Conviction of a Felony is another uncommon fault ground for divorce.
In order to seek a divorce on this fault ground, the spouse seeking divorce must show that the other spouse was convicted of a felony during the marriage, has been in jail for at least one year, and that the other spouse has not been pardoned.
There is also one more important limitation to this ground of divorce. It is not available if the jailed spouse was convicted of the felony with the use of testimony from the spouse seeking divorce.
Abandonment is another relatively rare ground for at fault divorce in Texas.
The spouse seeking divorce on the basis of abandonment must show that the other spouse intended to abandon the complaining spouse and did in fact abandon him or her for over one year.