Should I File for Fault-Based or No-Fault Divorce?

September 24th, 2018 by Tad Nelson in Adultery, Divorce

For Galveston-area couples looking to get a divorce, it is not necessary to assign legal fault to either spouse. Texas law authorizes a judge to grant a divorce on the grounds of “insupportability,” which is just another way of saying no-fault divorce. However, a spouse may still seek divorce based on the other spouse’s fault, which includes grounds such as adultery.

Galveston Court Rejects Wife’s Adultery Allegations, Grants Divorce Based on “Insupportability”

However, a judge can still decide to award a no-fault divorce if the accusing spouse fails to support an adultery claim. This subject actually came up in a recent Galveston divorce case. The parties married in October 2011. They separated four years later. The wife sued the husband for divorce, on both the grounds of insupportability and adultery. In support of the latter, the wife testified that her husband made telephone calls and sent “love notes” and text messages to another woman “with whom [he] claimed to be in love.” The wife introduced evidence in the form of “photos of messages,” but otherwise offered no proof that her husband ever engaged in extramarital sexual relations with this other woman.

The husband denied committing adultery. He specifically testified that he never engaged in a “physical relationship” with the woman identified by the wife. The trial judge ultimately decided to grant the wife a divorce on no-fault grounds.

The wife appealed, arguing she was entitled to a fault-based divorce on the grounds of adultery. The Texas 14th District Court of Appeals affirmed the trial court. It noted the trial judge has the “discretion to choose between in-supportability and fault-based reasons when deciding whether, and on which grounds, to grant a divorce.” And in this case, the judge did not abuse that discretion, given that the wife did not actually prove adultery.

Indeed, from a legal standpoint, adultery requires more than “suggestion and innuendo,” the Court of Appeals observed. The wife need not personally witness her husband having sex with another person. But there must still be some “direct or circumstantial evidence” to prove there was sexual intercourse–not simply an exchange of messages professing love. Furthermore, even if the wife had presented such evidence, the trial court could still have chosen to grant divorce solely on “in-supportability” grounds.

Our Houston Divorce Lawyers Can Help You

The inherent difficulty of proving adultery–not to mention the emotional toll it can take on the parties and their families–often leads jilted spouses to seek a no-fault divorce instead. That’s not to say there aren’t good reasons to seek a fault-based divorce. If proven, adultery can affect how a Galveston judge divides the couple’s marital property or determines spousal maintenance. And there may be personal or cultural reasons for wanting to prove a spouse’s infidelity–in the case discussed above, the wife alleged she could not obtain a “religious divorce” unless her husband cheated on her.

Whatever your situation, before you head into court you should always consult with a qualified League City divorce attorney who can help you decide whether it is better to seek a fault-based or no-fault divorce. Contact the Law Offices of Tad Nelson & Associates at (281) 280-0100 if you need to speak with an attorney right away.


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