Do Grounds for Divorce Matter in a High-Asset Case?

 Posted on March 24, 2015 in High Asset Divorce

Texas is a no-fault state, and the vast majority of divorces are based on "insupportability," which is Texan for "irreconcilable differences." However, a spouse may still obtain a divorce based on adultery, cruelty, or some other evidence-based ground. An adverse ruling – or a favorable ruling, depending on your point of view – can have a significant impact on a future property settlement in a high-asset divorce.

Section 8 of the Family Code states that "marital misconduct" is a factor when determining the amount and duration of maintenance payments. The statute specifically mentions adultery and cruel treatment, but other types of fault may also be applicable. Meanwhile, Section 7 states that a spouse may be punished in the property settlement, if there is evidence of fraud on the community. Such fraud could include a husband who spends community funds to buy a present for his girlfriend or a wife who has part of her paycheck deposited into a separate account, without her husband's knowledge or consent.

Fault

According to Section 6, there are six evidence-based grounds for divorce. Each can be established by a preponderance of the evidence.

• "Cruel treatment. . .that renders further living together insupportable;"
• Adultery;
• Felony conviction resulting in at least one years' incarceration;
• Abandonment for at least one year;
• Living apart for at least three years; or
• Confinement in a mental institution for at least three years.

Most of these grounds are quite narrow. For example, "confinement" in a mental hospital implies involuntary commitment. Additionally, the filing spouse must prove that the nonfiling spouse either cannot adjust to a normal life after release or that a relapse is "probable."

Defenses

The Family Code expressly eliminates the common-law defense of recrimination – mutual infidelity – in adultery cases. Some permissible defenses include:

• Condonation: The other spouse knew of the offending conduct (typically adultery), forgave the conduct, and renewed the marriage. Texas requires additional proof that there was a reasonable expectation of reconciliation.
• Connivance: If the filing spouse participated in the adulterous or other misconduct, connivance is an absolute defense.
• Provocation: One spouse entices the other to act in a certain way; for example, one spouse's cruel treatment may prompt the victim to abandon the marriage.

Collusion, another common-law defense, is not really applicable in no-fault states.

A declaration of fault can have a significant impact in your high net worth divorce. For a consultation with an aggressive Georgetown high asset divorce attorney, contact our office. We serve families in Travis, Williamson, and Hays Counties, as well as other parts of central Texas.