What Is the Difference Between Fault and No-Fault Divorce?
June 8th, 2016 by Tad Nelson in Divorce
Ending a marriage is never an easy decision, nor is divorce a simple process. The spouse seeking a divorce must offer one or more grounds for ending the marriage. Under Texas law there are seven such grounds. Six of these grounds implicate the other spouse was “at fault,” while the seventh is commonly referred to as a “no-fault” divorce.
What Exactly Does “No Fault” Mean?
Historically, states like Texas would not allow divorce without some allegation of fault. Modern Texas law recognizes, however, that there are many cases where the marriage is simply “insupportable.” Such cases are classified as “no-fault” divorces. Specifically, Texas law permits no-fault divorce whenever either spouse alleges there is sufficient “discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.”
The Six Grounds For an At Fault Divorce
While a no-fault divorce often involves little more than telling a judge the marriage is insupportable, a fault divorce requires proof of the other spouse’s misconduct. Some grounds for fault are easier to prove than others. Here are the six grounds for an at fault divorce in Texas:
- Cruelty – A fault divorce is permitted when one spouse is “guilty of cruel treatment” toward the other spouse. Cruelty generally refers to any act that “threatens life, limb, or health” of the aggrieved spouse. Cruelty is not simply unhappiness; it refers to circumstances where the couple’s continuing to live together would be dangerous.
- Adultery – If one spouse has voluntary sexual intercourse with someone other than the other spouse, that is considered adultery. Adultery as grounds for a fault divorce requires proof of such intercourse. It is not adultery merely because a spouse suspects the other spouse is having an affair.
- Conviction of a Felony – If a spouse has been convicted of a felony, in any state, and is currently serving a prison term of at east one year, the other spouse may seek a fault divorce. Texas law requires a conviction, not just an allegation or indictment, for this ground to apply.
- Abandonment – If one spouse leaves the other “with the intention of abandonment,” and does not return “for at least one year,” the abandoned spouse may seek a fault divorce. Abandonment in this context does not apply to a temporary, voluntary separation of the spouses. Nor would something like a spouse leaving for a military deployment, even one lasting more than one year, constitute abandonment.
- Living Apart – However, if the spouses have “lived apart an without cohabitation for at least three years,” that is also a ground for a fault divorce.
- Confinement in Mental Hospital – Finally, if a spouse is confined to a mental hospital, either public or private, for at least three years due to a “mental disorder” that is unlikely to be cured, the other spouse may seek a fault divorce.
Is a No-Fault Divorce Preferable to a Fault Divorce?
Even if a spouse has grounds for a fault divorce, he or she may still seek a no-fault divorce to avoid the need for a lengthy trial. But opting for a no-fault divorce may put an aggrieved spouse at a disadvantage. If a court determines one spouse is at fault for the failure of the marriage, that is taken into account when dividing the couple’s marital property. In other words, an injured spouse is more likely to secure a favorable divorce settlement.
Deciding whether and how to proceed with a divorce is a major undertaking. An experienced Galveston, TX divorce lawyer can assist you in dealing with the courts and your estranged spouse. Contact the Law Offices of Tad Nelson & Associates today if you need to speak with a divorce lawyer right away.