Texas Grounds for Fault-Based Divorce

Posted on July 31, 2007 by Shannon Cavers

Though the majority of divorce cases are plead as no-fault, there remain six fault based grounds, which include: (1) cruelty; (2) adultery; (3) conviction of a felony; (4) abandonment, (5) living apart (at least 3 years); and, (6) confinement to a mental hospital. 

Before no-fault divorce, cruelty was the most common ground for divorce. Though some litigants still plead cruelty, this is often done to gain the upper hand in the division of community property and in custody issues. The same holds true for adultery claims. 

Adultery is usually not pleaded as a sole ground for divorce, but in the alternative to no-fault grounds. 

The court may grant a divorce in favor of: 

  • the petitioning spouse, if during the marriage, the other spouse has been convicted of a felony, has been imprisoned for at least one year (state or federal penitentiary), and has not been pardoned. However, the court may not grant a divorce against a spouse who was convicted on the testimony of the other spouse. 
  • the petitioning spouse on the ground of abandonment if the other spouse left with the intention of abandonment and remained away for at least one year. 
  • either spouse if the spouses have lived apart without cohabitation for at least three (3) years. 
  • one spouse if, at the time the divorce is filed, the other spouse has been confined in a state or private mental hospital for at least 3 years and it appears that the hospitalized spouse’s mental disorder is of such a degree and nature that adjustment is unlikely or that if adjustment occurs, a relapse is probable. 

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Texas Grounds for Divorce - An Historical View

Posted on July 25, 2007 by Shannon Cavers

Today, the most common ground for divorce is insupportability – meaning there is such conflict of personalities that it is impossible for the spouses to continue living together. However, until 1913, the only grounds for divorce in Texas were cruelty, adultery, abandonment, and the conviction of a felony. All of these were fault grounds. The only alternative to fault grounds was to prove that the spouses were living apart without cohabitation for 10 years. Not until 1941 was another no-fault basis added, and that was for insanity. Basically, if the conduct complained about did not fit into one of the statutory grounds, a divorce was denied.  

During the late 1960’s lawmakers began to realize that the existing grounds for divorce (and defenses to divorce actions) were no longer compatible with modern life. Effective January 1, 1970, a no-fault ground was added to the Texas Family Code. While this may seem trivial, the new provision made a tremendous impact on family law. No fault divorce meant it was no longer the complaining party’s burden to prove misconduct or one of the no-fault grounds such as insanity or living apart. The party filing for a no-fault divorce only need establish that the marriage is insupportable, regardless of whether either party is at fault. 

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