Marital Fault in Texas

 Posted on June 17, 2015 in Contested Divorce

Although the vast majority of Texas divorces are filed under the no-fault law, there are times that an evidenced-based action may be more appropriate, particularly in a high-asset divorce.

For many people, a no-fault divorce is not a good option for religious or moral reasons. An evidenced-based divorce helps them paint a picture of an out-of-control relationship which was far beyond salvaging. In a similar vein, some spouses may want to portray themselves as victims. There is another reason. Texas is rather unique in that a judge may consider fault in the marriage as a basis for an unequal property distribution. Specifically, "marital misconduct" is one of the listed factors to determine the amount and frequency of maintenance payments.

The grounds for divorce, as well as some possible defenses, are laid out in Section 6 of the Family Code.

• Adultery: Once very narrowly defined as sexual intercourse between a spouse and a non-spouse of the opposite gender, adultery is a much broader term today. Other behavior, such as an addiction to pornography or an interest in an alternative lifestyle, may also be admissible as adultery. Section 6.008 expressly bars the common-law defense of recrimination ("She/He cheated on me first, so my affair was justified") and all but eliminates the defense of condonation ("She/He found out that I cheated and did not immediately file for divorce")
• Cruelty: The statute does not define the term, but it is generally understood to include mental, physical, verbal, and sexual cruelty. The law includes the phrase "that renders further living together insupportable," suggesting either one extremely traumatic event or a pattern of lesser abuse.
• Felony: The person must be convicted of a felony and spend at least one year in a federal or state prison.
• Living Apart: If the wayward spouse leaves and does not come back, the couple must live apart for at least three years. If the wayward spouse expresses intent not to return, that period is reduced to one year. "Living apart" means complete physical separation; separate bedrooms do not count.
• Mental Illness: A person must be "confined" in a mental hospital, a term that implies involuntary commitment, for at least three years. Furthermore, there must be evidence that the afflicted person either cannot adjust to life outside the institution or is prone to a relapse.

An evidenced-based allegation can give a spouse additional leverage in a high net worth divorce. For a consultation in this area, contact an aggressive Cedar Park complex divorce lawyer. Mr. Powers is a family law expert.