Bottom Line Up Front: While Texas is primarily known as a no-fault divorce state, it recognizes seven specific grounds for fault-based divorce that can significantly impact property division, spousal support, and child custody. Understanding these grounds—particularly the lesser-known ones like confinement in a mental hospital and living apart for three years—can be crucial for Houston-area residents navigating divorce proceedings.
Understanding Texas Divorce Law Framework
Texas operates under a dual system that allows both no-fault and fault-based divorces. While most couples opt for no-fault divorce citing "insupportability" (irreconcilable differences), fault-based divorce can provide strategic advantages in certain circumstances, particularly regarding asset division and spousal support determinations.
No-Fault Ground:
• Insupportability: The marriage has become unsustainable due to discord or conflict of personalities that destroys the legitimate ends of the marital relationship with no reasonable expectation of reconciliation.
The Seven Fault-Based Grounds for Divorce in Texas
Well-Known Fault Grounds
1. 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. This encompasses both physical and emotional abuse.
Evidence Required:
• Documentation of incidents (police reports, medical records)
• Witness testimony
• Photographs of injuries
• Records of threatening communications
2. Adultery
In Texas, any extra-marital relationships that occur by either spouse even after you have filed for divorce and are no longer living together, can still be considered adultery until the divorce is finalized.
Evidence Required:
• Circumstantial evidence (hotel receipts, photographs, surveillance footage)
• Text messages, emails, or voicemails
• Witness testimony
• Private investigator documentation
3. Felony Conviction
If your spouse has been convicted of a felony within the duration of the marriage, and has spent at least 1 year in a state or federal penitentiary or department of criminal justice, then this is grounds for a fault based divorce. The spouse must not have been pardoned, and the conviction cannot be based on the testimony of the petitioning spouse.
4. Abandonment
If one spouse leaves the other intending to abandon them, the abandoned partner may initiate divorce proceedings. This requires proof that the spouse left with the specific intent to abandon and has been away for at least one year.
Lesser-Known Fault Grounds
5. Living Apart for Three Years
The court may grant a divorce in favor of either spouse if the spouses have lived apart without cohabitation for at least three years. This is one of the most overlooked grounds for fault-based divorce in Texas.
Key Requirements:
• No cohabitation for the entire three-year period
• Physical separation with separate residences
• Documentation of separate living arrangements
Evidence Required:
• Lease agreements or property deeds showing separate addresses
• Utility bills in different names
• Witness testimony confirming separate living situations
• Financial records showing independent household expenses
This ground can be particularly useful when couples have been informally separated for an extended period without formally filing for divorce.
6. Confinement in a Mental Hospital
The court may grant a divorce in favor of one spouse if at the time the suit is filed: (1) the other spouse has been confined in a state mental hospital or private mental hospital for at least three years; and (2) it appears that the hospitalized spouse’s mental disorder is of such a degree and nature that adjustment is unlikely or that, if adjustment occurs, a relapse is probable.
Key Requirements:
• Minimum three years of confinement at time of filing
• Confinement in state or private mental hospital (in Texas or another state)
• Medical evidence that adjustment is unlikely or relapseis probable
Evidence Required:
• Hospital records and medical documentation
• Expert psychiatric testimony
• Duration of confinement records
• Prognosis from mental health professionals
Important Protections: In these cases, the Texas court will appoint an attorney ad litem to represent the hospitalized spouse during the divorce proceedings. Costs may not be adjudged against a party against whom a divorce is granted for confinement in a mental hospital.
7. Another Lesser-Known Consideration: The "Living Apart" Alternative Ground
While technically classified under no-fault, there are two grounds for a no-fault divorce in Texas: (1) insupportability; and (2) living apart without cohabitation for a three yearperiod. This creates an interesting legal distinction where the same factual scenario (three years of separation) can be used either as a fault or no-fault ground.
Strategic Implications of Fault-Based Divorce
Property Division Impact
The Texas Supreme Court outlined specific factors for such a disproportionate division in the case of Murff v. Murff. The court provided several considerations for making a just and right division of community property and debts, including fault in the dissolution of the marriage.
Proving fault can result in:
• Disproportionate division of community property favoring the non-fault spouse
• Consideration of misconduct in asset distribution
• Potential reimbursement claims for wasted community assets
Spousal Support Considerations
Evidence of fault can influence whether it will be awarded and the amount. For example, a spouse found guilty of adultery may receive less financial support from the other party.
Child Custody Implications
A family court judge decides what is in the child’s best interests. The presence of fault may affect the judge’s decision. If a spouse is unable to provide for the child due to a felony conviction and imprisonment, the court is more likely to deny primary custody or parenting time.
Residency Requirements
At least one spouse must have lived in Texas for at least six months before filing. The spouse filing must have lived in the county where the divorce is filed for at least 90 days before submitting the petition.
Evidence Gathering Best Practices
Documentation Requirements
Successful fault-based divorce requires compelling evidence. To obtain a fault-based divorce, the petitioner must present compelling evidence to the court to justify granting the requested relief.
Common Evidence Types:
• Medical records and expert testimony for mental health grounds
• Financial records for adultery claims involving community funds
• Police reports and witness statements for cruelty
• Correspondence and digital communications
• Professional surveillance documentation
Working with Legal Counsel
You can get assistance from your family law attorney to gather the required documentation and advise you on what is needed for a successful outcome.
Current Legal Developments
The Movement Against No-Fault Divorce
Despite being the most common type of divorce in Texas, there is a move to end no-fault divorce in the state. The movement to end no-fault divorce in Texas is gaining traction, particularly among conservative lawmakers and advocacy groups.
Important Exception to the 60-Day Waiting Period
While Texas law generally requires a 60-day waiting period before a divorce can be finalized, there are critical exceptions for cases involving domestic violence. A waiting period is not required if the court finds that:
1. The respondent has been finally convicted of or received deferred adjudication for an offense involving family violence against the petitioner or a member of the petitioner’s household; or
2. The petitioner has an active protective order or an active magistrate’s order for emergency protection against the respondent because of family violence committed during the marriage.
This exception recognizes the urgent need to protect victims of domestic violence from prolonged legal proceedings that could expose them to continued danger.
Conclusion
Understanding both the well-known and lesser-known grounds for fault-based divorce in Texas is crucial for Houston-area residents considering their options. While grounds like adultery and cruelty are commonly understood, the provisions for living apart for three years and confinement in a mental hospital represent important alternatives that may apply in specific circumstances.
The strategic decision to pursue fault-based versus no-fault divorce should be made in consultation with experienced family law counsel, considering the specific facts of your case, the available evidence, and your goals regarding property division, spousal support, and child custody.
The complexity of fault-based divorce proceedings, combined with the potential for significant impact on the outcome, makes professional legal representation essential.
Get Expert Legal Guidance from Board-Certified Family Law Attorney
If you’re considering a fault-based divorce, don’t navigate this complex legal process alone. Duana Boswell-Loechel, an experienced attorney who is Board Certified in Family Law by the Texas Board of Legal Specialization—a distinction achieved by less than 1% of Texas attorneys. This certification demonstrates our deep expertise and commitment to excellence in family law matters.
Our team understands the nuances of Texas fault-based divorce grounds, including the lesser-known provisions that could significantly impact your case outcome. We have extensive experience handling complex divorce cases in Harris, Galveston and Brazoria County Family Courts and can help you:
• Evaluate whether fault-based divorce is the right strategy for your situation
• Gather and present compelling evidence to support your case
• Navigate Harris County’s specific procedural requirements
• Maximize your chances of a favorable outcome regarding property division, spousal support, and child custody
Don’t let the complexity of fault-based divorce overwhelm you. Contact Boswell Law Firm today to schedule a confidential consultation with our Board Certified family law attorney. We’re here to protect your rights and guide you through every step of the process.
