Clients often wonder what they have to do to get divorced.
- Are all of the problems in our marriage going to be made public?
- Do we have to fight or can we get divorced in a civil manner?
Well, The Texas Family code provides for 7 grounds or basis for divorce. Three of the grounds are considered no-fault and four are considered fault based.
Three No-Fault Grounds
The no-fault grounds are insupportability, living apart and confinement in a mental hospital.
Insupportability is the most frequently used ground for divorce in Texas. A party must show that the marriage has become insupportable because of discord or conflict, the discord or conflict destroys the legitimate ends of the marriage, and there is no reasonable expectation of reconciliation. It is relatively easy to prove these elements. The party seeking the divorce merely needs to testify as to the existence of these elements.
The parties can also obtain a divorce on the ground of living apart. The parties must have been living apart for at least 3 years without cohabitation. Cohabitation means living together. Again, in order to prove the ground of living apart the petitioner of the divorce needs to provide testimony about the living arrangement of the parties for the last 3 years and confirm that they have not lived together during that time.
The third no-fault basis for divorce is confinement in a mental hospital. The spouse must have been confined in a mental hospital for at least 3 years and it appears that the spouse’s mental disorder is of such a degree and nature that they are not likely to recover, or that if they do recover, a relapse is probable. In this instance, a guardian ad litem must be appointed for the incapacitated spouse.
Four Fault-Based Grounds
The fault-based grounds are cruelty, adultery, felony conviction and abandonment. A party will claim one spouse is at fault for the divorce in order to attempt to obtain a greater share of the marital estate. Additionally, fault based grounds can be considered by the court when factoring in the amount, duration and manner of spousal support. The court can still grant a no-fault divorce even though the parties attempt a fault base divorce.
A divorce can be granted based on cruelty of the conduct was of such a nature that it rendered further living together insupportable. Cruel treatment requires willful and persistent infliction of unnecessary suffering. The suffering can be either physical or mental and can be based on a single event or a combination of events.
Adultery is the most common fault based grounds for divorce. Adultery is defined as the voluntary sexual intercourse of a married person with one not eh husband or wife of the offender. A party must prove adultery with clear and convincing prove.
If a spouse is convicted of a felony and incarcerated for at least one year and divorce can be granted in favor of the non-incarcerated spouse.
The last fault-based ground for divorce is abandonment. This occurs where one spouse has left the marriage voluntarily with the intention of abandonment and has remained away for at least 1 year. Intent is a key element of this ground. The leaving party must have a clear intent to leave and not return to live with the remaining party.