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.