Grounds for Divorce in Texas

If you're facing divorce, you probably have an idea why your marriage is on the rocks. But there's a difference between the relationship problems that lead to divorce and the legally accepted reasons, or "grounds," for divorce in your state. When you file for divorce (or "dissolution of marriage") in Texas, you may claim either a "no-fault" or "fault-based" ground for your divorce. Your choice can make a big difference in how your case will proceed, including how long it will take and how much it will cost.

No-Fault Divorce in Texas

When you file for a no-fault divorce, you aren't claiming that your spouse was to blame for the end of your marriage. That tends to reduce conflict (and expense) in the divorce process. Texas law includes two different no-fault divorce grounds:

• Insupportability: You may get a no-fault divorce in Texas when your marriage "has become insupportable because of discord or conflict of personalities," and there's no "reasonable expectation of reconciliation." (Tex. Fam. Code § 6.001 (2022).)
• Separation: You may also get a no-fault divorce if you can show that you've lived apart from your spouse (without marital relations) for at least three years. (Tex. Fam. Code § 6.006 (2022).)

Although the specific language is different, the "insupportability" ground is similar to the more common no-fault divorce grounds in other states like "irreconcilable differences" or "irretrievable breakdown of the marriage." It basically means that you and your spouse can't get along, and there's little to no chance that you'll get back together.

Do Both Spouses Have to Agree That Their Marriage Is Insupportable?

You may get a divorce based on the ground that your marriage is insupportable even if your spouse doesn't agree that's the case. In that case, however, you will need to testify at a court hearing about why you can no longer stand to be married to your spouse. The judge will make a decision based on your testimony, your spouse's version of events, and any other evidence that either or both of you present.

Even if there's disagreement on the issue, judges will typically find that the marriage is insupportable when one spouse is adamant that there's no chance of reconciliation, backing up that belief with testimony about the serious problems in the marriage.

What's the Difference Between No-Fault and Uncontested Divorce?

Just because you've filed for a no-fault divorce, that doesn't necessarily mean that you won't have legal disputes in your case. If you want to file for an uncontested divorce in Texas, you and your spouse will need to agree about all of the relevant issues in ending your marriage, including how you'll divide your community property and debts, spousal maintenance (alimony), child custody (known as "conservatorship" in Texas), and child support.

Without a complete agreement on these issues, your case will proceed as a contested divorce. That almost always means that your divorce will cost more and take longer.

Grounds for a Fault-Based Divorce in Texas

When you file for a fault-based divorce in Texas, you'll claim that your spouse engaged in one of the following types of misconduct:

• adultery
• intentional and persistent physical or mental cruelty that makes it unbearable to continue living together
• imprisonment (for at least a year) after conviction for a felony, or
• abandonment for at least a year.

(Tex. Fam. Code §§ 6.002−6.005 (2022).)

There's another divorce ground in Texas that's technical based on fault, even though it doesn't involve any voluntary misconduct. You may get a divorce based on the fact that your spouse has been confined to a psychiatric hospital for at least three years, with little or no likelihood of recovery. (Tex. Fam. Code § 6.007 (2022).)

Proving Fault-Based Divorce Grounds

When you file for a fault-based divorce, you'll need to prove your claims in court. And your spouse is likely to fight those claims. This is especially true in Texas, where the judge may consider a spouse's fault—including adultery—when making decisions about the property division or the amount and duration of spousal maintenance.

Court battles over a spouse's alleged misconduct are the main reason a fault-based divorce usually takes longer and is more expensive (think lawyers' fees) than a no-fault divorce.

Condonation as a Defense to Fault-Based Divorce

If you're the one being accused of adultery or cruelty in a fault-based divorce—even if you're guilty of the misconduct—you still might have a defense if you can show that your spouse knew about your behavior but condoned it. Typically, you'll need to prove that:

• your spouse forgave you after knowing the full truth of what you did, and
• you demonstrated your repentance by not repeating the behavior.

(Cote v. Cote, 404 S.W.2d 139 (Tex. Ct. App. 1966).)

However, Texas law allows this "condonation" defense only when the judge also believes there's no reasonable expectation of reconciliation. (Tex. Fam. Code § 6.008 (2022).)

Are There Alternatives to Divorce in Texas?

Unlike some states, Texas doesn't provide a procedure for legal separation as an alternative to divorce. You might be able to have your marriage annulled or declared void, but the grounds for legal annulment in Texas are very limited. Annulment laws can be complex, so it's a good idea to consult with a Texas family law attorney to learn whether this is a reasonable option for you instead of divorce.

Next Steps in Your Texas Divorce

You should at least speak with a lawyer if you are considering filing for a fault-based divorce in Texas. As we've mentioned, these divorces can be messy, lengthy, and expensive—and you would need an experienced family law attorney to help you navigate the system and protect your rights. After your first meeting with a divorce lawyer, you should have a better idea of whether you have a good chance of proving your claims and whether a fault-based divorce would be to your advantage.

But if you conclude that a no-fault uncontested divorce would be a better option, you may very well be able to handle your own divorce without hiring a lawyer. Even if you and your spouse are having trouble agreeing about all the issues in your divorce, you could try mediation as a relatively low-cost way to work out your disputes.

Then, once you've reached a settlement agreement, you can find the right forms (often available on your state or local court's website) and file them with the court. Or you could file for divorce online by using a low-cost service that provide you with the proper divorce papers, completed based on your answers to a questionnaire. Some of these services will even take care of the actual filing process, for an extra fee.