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Grounds for Divorce

Texas Family Code Section 6 describes several grounds for divorce in Texas.

Insupportability. This is definitely the most commonly used reason for requesting a divorce in Texas. Upon the request of either party to a marriage, the court may grant a divorce without regard to fault if the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation. This is basically legalese for "We do not get along with each other, we have a bad marriage, and we do not expect things to get better."

Cruelty. The court may grant a divorce in favor of one spouse if the other spouse is guilty of cruel treatment toward the complaining spouse of a nature that renders further living together insupportable.

Adultery. The court may grant a divorce in favor of one spouse if the other spouse has committed adultery.

Conviction of felony. You can petition for a divorce in Texas if your spouse has: (1) been convicted of a felony; (2) been in a state or federal jail or prison for over a year; and (3) not been pardoned by the governor or president.  You CANNOT use this ground, however, if your spouse went to prison because of your testimony.

Abandonment. The court can grant a divorce if your spouse left you with the intention of abandoning you, AND has been away for at least a year.  In other words, he or she has to have intended to leave and never come back.

Living Apart. If you and your spouse have lived apart from each other for more than three years, you can ask for a divorce on this ground.

Confinement in Mental Hospital. If your spouse has been confined in a mental institution for over three years AND there is good reason to believe that he or she will never truly recover from serious mental illness, then you can apply for a divorce under this ground.

All of these grounds, other than insupportability, are considered "fault" grounds.  That means that you're alleging that your spouse has done something wrong and that is the reason you want to end the marriage.  In any divorce case where you make such an allegation, your spouse has the right to defend himself/herself in court and challenge the truthfulness of your allegation.  That could result in a contested trial.  A contested trial usually means each spouse hires his/her own lawyer. That, of course, results in higher legal fees, and in most cases it is just not worth it. The vast majority of divorces in Texas are granted based on insupportability grounds because that allegation is least likely to increase emotional tensions between the husband and the wife and therefore is least likely to increase the possibility of an expensive and time consuming legal battle. 

It is also good to remember that a divorce petition is a public record once it is filed with the district clerk. Many times it is best not to pour gasoline on a fire and make things worse and more expensive by making a public accusation of adultery against your spouse in a divorce petition. I have filed many "no fault" divorce petitions over the years when the parties themselves knew very well why the divorce was being filed, but they decided that the whole world did not need to know all of the juicy details about the marriage. Sometimes the petitioner is protecting the children. If they are not old enough to read a divorce petition right now, they will be some day...

In my opinion, choosing to file for divorce on any grounds other than the "no fault" ground of insupportability is usually a mistake. Most people think they might end up with a lot more of the community assets if they can show the judge that their spouse "did them wrong." In reality, most judges that I have dealt with are not going to spend a lot of time caring about the details of an extramarital affair. They have heard it all many, many, many times before. I recommend to my clients that they spend more time worrying about reaching a fair settlement of all the divorce issues with their spouses than spending time choosing a ground for divorce that may anger or embarrass their spouse and make the case far less likely to settle fairly and quickly.

If you are thinking about filing for divorce, please give me a call at 512-630-3745 to discuss your personal situation. I will be glad to speak to you on the phone for a few minutes for no charge. If you want to schedule an office consultation so you can visit with me in person, the charge is only $250 for up to a one hour office consultation.

If you are sure you want to file for divorce in Texas, I can usually get the divorce petition filed in Williamson County or an adjacent county within one or two working days after the first time you call me on the phone and come to my office for a short meeting to sign a contract and give me the information I will need to file a petition for divorce. You will have to wait at least 60 days in Texas after the divorce petition is filed before the judge is allowed to grant the divorce, so we can work out all the details of the final decree while that time is passing. Call me at 512-630-3745 if you are ready to get started.

It is important to realize that you do not have to work out all the details of the final decree before you file a divorce petition in Texas. You can file the divorce petition to start the 60 day clock and then work out all the details of the final decree while the 60 day minimum waiting period is underway.

(Technically a Texas judge can grant a divorce sooner than 60 days after the petition is filed if you allege family violence. However, getting a divorce in less than 60 days is really only going to happen if you allege family violence AND your spouse fails to timely file any type of written response after being served with the divorce petition. That rarely happens.)