On behalf of The Rachel Firm posted in Divorce on Wednesday, August 27, 2014.
Texas, like most states, has no-fault divorce. This means that in order to obtain a divorce a spouse does not have to allege that the other spouse was at fault for the break-up of the marriage. But, some Texas family lawyers see a trend towards alleging both no-fault and fault grounds in divorce petitions.
Texas law provides seven possible grounds for obtaining a divorce, three of which are no-fault and four of which are fault-based. No-fault grounds include insupportability, the ground cited most often. Insupportability means the marriage cannot be maintained due to conflict, with no realistic hope of reconciliation. Other no-fault grounds include the couple living apart for three years or more, and confinement in a mental hospital for three or more years.
Fault grounds include adultery, cruelty, abandonment and incarceration for a felony. For a divorce to be granted based on fault, the truth of the fault allegation must be proved in court. Many spouses who allege fault also allege a no-fault ground as a fallback position.
More spouses are alleging fault because it can result in an advantage in property division, alimony and child custody determinations. If a spouse proves the other spouse committed adultery, for example, the court may take that into consideration in determining how the property is divided or how much spousal support must be paid.
A spouse should probably only allege fault if there is clear evidence to support the allegation. Making an allegation of adultery without any proof can backfire if the court determines the allegation was unfounded. It can also lead to additional litigation expense and diminish the chances of an amicable settlement. If fault can be proved, however, and if it makes strategic sense to plead it, the spouse who has been wronged should not feel guilty about making the allegation.
Source: Texas Lawyer, “A New Trend in Divorce Petitions: Alleging Fault and No-Fault,” Holly Friedman Biederman & Jennifer L. Dauzat, Aug. 25, 2014