The short answer is no – asking for a no fault divorce does not prevent a spouse from also seeking a disproportionate share of the marital estate as I explain in more detail below.
Texas is a no fault divorce state which means that you do not have to prove misconduct by your spouse in order to get divorced. The no fault ground for divorce is claiming that due to discord or conflict of personalities, the spouses can no longer achieve legitimate ends of the marriage relationship.
But that does not mean that each spouse will get an equal share of the marital estate.
Texas is a community property state which means that property acquired during marriage belongs to both spouses regardless of whose name is on the deed, title, or bank account.
In a divorce, the court (or the parties by agreement) will have to divide the community property between the spouses. The legal standard for deciding how to divide that property is a “just and equitable” division.
In making that just and equitable division, a court will consider several factors and fault in the breakup of the marriage is just one of the factors that a court will consider.
If one spouse proves fault as the cause of the divorce, then certainly that finding can factor into the property division.
But pleading or proving a no fault divorce does not prohibit a spouse from arguing fault in the breakup of the marriage as a reason for a disproportionate division of community property.
A court can award a disproportionate division of community property even in cases where the spouses are seeking a no fault divorce and neither spouse claims the other is at fault for the breakup of the marriage.
This is due to the long list of additional factors a court is required to consider when determining what constitutes a just and equitable division of the community estate.
Below is a list of some of the factors a court will consider when making a just and equitable division of property in addition to any fault in the breakup of the marriage:
- Relative education of the spouses.
- Relative employment, earning capacity, and business skills of the spouses.
- The age and physical conditions of the spouses.
- Financial obligations of the spouses.
- The size of separate estates and any expected inheritance of a spouse.
- The nature of particular property and whether that benefits one spouse over the other.
- Any wasting of community assets by a spouse.
- Any temporary support paid during the divorce.
- Excessive gifts to a spouse or children.
- Unusual needs of any adult children.
- Tax consequences of the property division.
- Whether a spouse committed fraud on the community.
- Which spouse will care for young children.
- The behavior of the spouses during the divorce proceedings.
- Whether separate property was a source of the community estate.
For example, a court will often order a disproportionate division even in a no fault divorce when there is a significant disparity in earning power of the spouses due to education, experience, or skills.
A court will also frequently order a disproportionate division when one spouse is awarded primary custody of the children – for ex maple by awarding that spouse the martial residence since the children are accustomed to living there.
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