Fault Divorce – What It Means

In Texas, there are two general types of divorces: no-fault divorces and fault divorces.

Fault Divorce Grounds

A fault divorce means one spouse is judged to be at fault for the breakup of the marriage by law.

There are four fault grounds for divorce in Texas:

  1. Cruelty
  2. Adultery
  3. Conviction of a Felony
  4. Abandonment

Unlike the case of a no-fault divorce, the petitioning spouse must provide proof of misconduct by the other spouse to establish a fault ground for divorce.

However, even if a spouse provides proof of fault by the other spouse, a court may decide to grant the divorce on other grounds.

Definitions of Fault Grounds For Divorce

Cruelty means that one spouse’s actions have rendered the couple’s living together incapable of being borne, unendurable, insufferable, or intolerable.

Adultery means voluntary sexual intercourse by a married person with someone who is not the spouse. An action for divorce based on adultery is not limited to intercourse that occurs prior to the date the spouse’s separated.

Conviction of a Felony requires that the felon spouse have been convicted of a felony and spent at least one year in prison.

Abandonment likewise requires that the petitioner show the other spouse intended to abandon the complaining spouse and did in fact abandon him or her for over one year.

Impact on Other Issues

If a spouse is found to be at fault in the breakup of the marriage, then that finding may cause a court to make an inequitable award in the property division but it will not affect any other issues in the divorce.

If a spouse fails to prove fault or even fails to allege fault, that spouse can still introduce evidence on these issues for the purpose of establishing fault as a factor in a property division.

Fault in the breakup of the divorce will not affect a spouse’s child custody rights. Those are considered separate and apart from the divorce action.

Additionally, a spouse’s right to child support or child support obligation will not be affected by a finding of fault in the breakup of the marriage.

Residency Requirements

A court only has jurisdiction to render a divorce if the petitioning spouse or the defendant spouse has resided in the State of Texas for the preceding 6 months and the county in which the divorce is filed for the preceding 90 day period.

For military service members, residency is established by the geographic location of the service member’s primary posting.

Serving Your Spouse With Citation

Upon filing a petition for divorce, you will have to serve your spouse with a copy of the petition and the citation to appear.

This is a legal protection that affords your spouse the opportunity to appear and defend his or her self in court.

There is an exception that allows your spouse to waive service of citation which means that you do not have to have a sheriff show up to serve your spouse with divorce papers. Your spouse will have to agree to sign the waiver though.

Time to Respond to the Petition

After being served with the divorce petition, your spouse will have until the first Monday after the expiration of 20 days from the date of service to file an answer to the petition for divorce.

How Fault Cases Proceed

A divorce alleging fault grounds will almost always be a contested divorce and contested divorces take more time. This means that the statutory 60-day waiting period in Texas often not a concern.

The parties will usually begin by attempting to negotiate an agreement informally and perhaps exchange property inventories or other documents to support their positions.

At this point, many cases will settle. Particularly those where fault on the part of one spouse is clear.

If the issue of fault is contested by the responding spouse, then the case will likely move to discovery because you will often need to recover bank statements, phone records, emails, text messages, and other records to establish proof sufficient to support the alleged fault.

If the parties are unable to reach an agreement on their own, then they will voluntarily or by court order proceed to mediation.

If the parties are still unable to reach an agreement after mediation, then they will likely proceed to a trial in court and the judge will rule on any outstanding issues in the case.

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