Why Texas Has Fault and No Fault Divorce

Last spring, Fort Worth Representative Matthew Krause caused quite a stir, proposing a bill that would make Texas a divorce “fault state.”  Proponents of the bill suggested “fault” would keep families together by disallowing the “quick divorce” and encouraging couples with children to keep their marriage together for the sake of the family.

This idea did not sit well with many people, however; particularly divorce attorneys, who saw the complicated writing on the wall.  (Had it passed, many a family law attorney may have made his or her own bid for “The Family Lawyer Reemployment Act,” but fortunately, no such bill made the books.)  Why would Texas as a sole fault state be potentially disastrous?

Learn from the past

It used to be that when someone sought a divorce in Texas (and many other states), he or she was required to cite specific grounds against their spouse.  This led to people potentially making false allegations of adultery or other misconduct, or remaining in abusive situations because the abuse could not be “proven.”

Then Texas became one of seventeen states with both the option of a “fault” or a “no-fault” divorce.  A spouse must plead in either case; seven acceptable “grounds” exist, six of which are “fault,” and the other “no-fault.”  Fault grounds include: living apart, confinement to a mental hospital, conviction of a felony, abandonment, cruelty, and the fault pleading most often given—adultery. While only one ground exists for a no-fault divorce, it remains the most common pleading in Texas: “insupportability.”

The language used in the actual Petition for Divorce goes like this, “the marriage has become insupportable because of discord and conflict, which destroys the legitimate ends of the marriage relationship…” In other words, they can’t stand to live with each other anymore because fill in the blank.  No one necessarily at fault.  Or both, depending on how you look at it.

The upside of no-fault

When insupportability is grounds for divorce, property division is generally 50/50 and “standard” rules regarding visitation are used as a basic template.  Why is “no-fault” insupportability most often used when spouses seek a divorce?

Divorce attorneys would likely say because it speeds up the process and reduces the level of stress incurred by both parties.

Additionally, while some fault grounds are straightforward to establish—a spouse was incarcerated for more than a year, for example—others are much more difficult to prove.  For example, text messages, emails, or reports from a private investigator may prove a spouse used inappropriate language, had secret meetings with another significant other, or is a jerk, but proving sexual intercourse took place between a person and someone other than his or her spouse is decidedly more difficult.  Fault requires a preponderance of the evidence over fifty percent.

Why fault should be an option

If one spouse is at fault for the demise of the marriage and the other can meaningfully prove one of the six fault grounds, the court will often take this into consideration when determining property division.  This is also true with decisions regarding visitation.

Additionally, if a spouse is eligible under the law to receive spousal support, the judge may consider marital fault when deciding the amount and duration of alimony awarded.

Finally, even if a fault ground is pleaded, a judge has the discretion of granting the divorce on the ground of insupportability if he or she feels fault has not been adequately established.  Ultimately, a judge is granted the power to determine what is “just and right” in the case of divorce and decide property division, visitation, and spousal support accordingly.

Final thoughts

While encouraging couples, especially those with children, to work on problems that present in marriage instead of opting for a knee-jerk divorce is laudable, the practical and/or legal application and implication of upholding such ideals cannot be effectively legislated.  Ultimately, people are responsible for the decisions they make and the real-world consequences that naturally follow.