Pursuing Fault-Based Divorce in Texas

While most divorces in Texas are filed on no-fault grounds, understanding when a fault-based divorce may be worth pursuing can help you make strategic decisions that protect your interests.

Key Takeaways:

• Texas recognizes several fault grounds for divorce, each of which requires specific evidence to prove in court.

• Successfully establishing fault can influence how the court divides community property, and in some cases it may strengthen a claim for spousal maintenance or affect custody determinations.

• Pursuing a fault-based divorce involves a higher burden of proof than a no-fault filing and requires a legal strategy that weighs the potential benefits against the additional time and cost involved.

  
  

Most people going through a divorce in Texas file on no-fault grounds. It is the simpler path, it generally moves faster, and it does not require either spouse to prove that the other did something wrong. But sometimes, no-fault does not tell the whole story. 

When one spouse's behavior directly caused the breakdown of the marriage, whether through infidelity, abuse, abandonment, or another serious act, the other spouse may have both a legal right and a practical reason to pursue a fault-based divorce instead. Understanding what that process involves, what it requires, and what it can accomplish is essential before deciding which path is right for your situation.

At Kamal Law Firm, PLLC, we help clients across Texas navigate every aspect of the divorce process, including cases where fault plays a significant role. With over 36 years of combined legal experience, our team provides the strategic guidance and thorough preparation that fault-based cases demand. We serve a diverse client base and communicate fluently in English, Spanish, Hindi, and Urdu, ensuring that every client we work with can fully understand their options and participate meaningfully in the decisions that will shape their future.

No-Fault Versus Fault-Based Divorce in Texas

Texas allows couples to divorce without assigning blame through a no-fault filing based on insupportability, which simply means that the marriage has become unsustainable because of conflict or discord. The vast majority of Texas divorces proceed on this basis because it avoids the need to prove specific misconduct in court.

A fault-based divorce, on the other hand, asks the court to recognize that one spouse's actions were responsible for the end of the marriage. When the court finds that fault has been established, it can affect how community property is divided, whether spousal maintenance is awarded, and in some circumstances, how custody matters are resolved. The trade-off is that proving fault takes more time, requires stronger evidence, and adds complexity to what is already an emotionally demanding process.

Deciding between these two paths is not always straightforward. In some cases, the strategic advantages of a fault-based filing clearly outweigh the additional effort required. In others, a no-fault approach may get you to the same result more efficiently. The right decision depends on the specific facts of your case and what you are hoping to achieve.

Grounds for Fault-Based Divorce in Texas

Texas law recognizes several specific grounds on which a spouse can file for a fault-based divorce. Each ground has its own requirements and its own evidentiary threshold.

• Adultery is one of the most commonly cited fault grounds. You do not necessarily need to present direct proof of a sexual relationship, but you do need to show that your spouse had both the inclination and the opportunity to engage in an extramarital affair. Evidence can include communications such as text messages and emails, financial records showing expenditures on a third party, witness testimony, and other documentation that paints a clear picture of the relationship.

  
  

• Cruelty encompasses physical abuse, emotional abuse, and patterns of behavior that make living together insupportable. The cruelty must be directed at the filing spouse and must be severe enough that continuing the marriage would be unreasonable. Documentation such as police reports, medical records, protective orders, photographs, and testimony from witnesses who observed the behavior can all support a cruelty claim.

• Abandonment requires showing that one spouse left the other with the intention of remaining apart and has been gone for at least one year. This is not the same as a temporary separation or a situation where both parties agreed to live apart. The leaving spouse must have departed voluntarily and without justification, and the absence must have continued for the required period.

• Felony conviction applies when one spouse has been convicted of a felony and sentenced to imprisonment for at least one year in a state or federal penitentiary. This ground cannot be used if the conviction was based largely on the testimony of the other spouse.

  
  

• Living apart is a ground that becomes available when the spouses have lived separately without cohabitation for at least three consecutive years. Unlike abandonment, this ground does not require proving that one spouse left involuntarily or with the intent to end the marriage.

  
  

• Confinement in a mental hospital is available when one spouse has been confined in a mental hospital for at least three years and the mental disorder is of such a nature that either adjustment is unlikely or a relapse is probable. 

  
  

How Fault Affects Property Division

One of the most significant reasons to consider a fault-based divorce is the impact it can have on how community property is divided. Texas courts are required to divide marital assets in a manner that is just and right, and fault is one of the factors the court may consider when determining what that looks like.

When one spouse has engaged in conduct like adultery, cruelty, or the wasteful dissipation of marital assets, the court may award a disproportionate share of the community estate to the innocent spouse. If one spouse spent significant community funds on an extramarital relationship, ran up debts through reckless behavior, or diminished the marital estate through misconduct, it would not be equitable to divide what remains as though both parties contributed equally and behaved responsibly.

The degree to which fault influences the division varies from case to case. Courts weigh fault alongside other factors, including each spouse's earning capacity, health, age, education, the needs of any children, and the overall size and character of the estate. Fault alone does not guarantee a dramatically lopsided division, but in cases where the misconduct was particularly egregious or financially damaging, it can make a meaningful difference in the final outcome.

Fault and Spousal Maintenance

Fault can also play a role in determining whether spousal maintenance is awarded and under what terms. Texas law places specific eligibility requirements on court-ordered maintenance, including that the marriage lasted at least ten years and that the requesting spouse cannot meet their minimum reasonable needs independently. However, there is an exception that bypasses the ten-year requirement: if the other spouse was convicted of or received deferred adjudication for an act of family violence within two years of the filing, maintenance may be awarded regardless of the length of the marriage.

Even when the standard eligibility requirements are met, the court considers fault as one of several factors in deciding whether maintenance is appropriate and how much should be awarded. A spouse who committed adultery or engaged in cruel treatment may find that their misconduct weighs against them in the maintenance analysis, either by strengthening the other spouse's claim or by reducing the amount awarded to the party at fault.

Can Fault Affect Custody?

Custody decisions in Texas are governed by the best interests of the child, and fault in the divorce does not automatically translate into a custody advantage. However, when the conduct that constitutes fault also raises concerns about the safety or well-being of the children, it can absolutely influence how custody is determined.

For example, if the fault ground is cruelty and the abusive behavior extended to or occurred in the presence of the children, the court will take that into account when evaluating each parent's fitness. Similarly, if one parent's lifestyle choices related to an extramarital relationship exposed the children to instability or inappropriate situations, the court may consider that when determining conservatorship.

It is important to understand that the court's focus in custody matters is always on the children, not on punishing either parent. Fault becomes relevant only to the extent that it bears on the child's safety, stability, and overall well-being.

How Kamal Law Firm, PLLC Can Help

At Kamal Law Firm, PLLC, we understand that the decision to pursue a fault-based divorce is deeply personal and carries significant legal implications. Our team brings over 36 years of combined experience to these cases, and we provide the thorough preparation, strategic thinking, and compassionate guidance that our clients need to navigate this process with confidence. We serve a diverse community with fluency in English, Spanish, Hindi, and Urdu, and we are experienced in handling divorces that involve immigration considerations, complex financial holdings, and sensitive family dynamics. 

Whether your case calls for certified mediation or determined courtroom advocacy, we are prepared to stand beside you and fight for the outcome you deserve. Book a consultation today to discuss your situation and learn how we can help you protect your future.