Which Type of Divorce is Right for You
Every divorce is as different as every couple is. Some are amicable and short, and some can be ugly and drawn out. There are also contested divorces, uncontested divorces, no-fault divorces, and divorces for fault. How do you know which one is right for you? While you should always consult with a divorce lawyer before filing your lawsuit, you should have a basic understanding of the kinds of divorces that may be right for you and your family.
In Texas, there are two grounds for divorce: fault and no-fault. Most people assert no fault grounds. When you file for divorce, you simply allege that no one is to blame for the breakdown of the marriage. There is no need to provide proof to the court that a spouse committed an act that ended the marriage. The standard language used is: “The marriage has become insupportable because of discord or conflict of personalities between the parties that destroys the legitimate ends of the marital relationship and there is no reasonable expectation of reconciliation.” In other words, that is just a very fancy way of saying that the parties grew apart and they do not anticipate being able to get back together. Caveat: keep in mind that when your spouse responds to your divorce petition, he or she may allege fault grounds like the one discussed below.
A fault divorce, on the other hand, means that at least one of the parties has to allege their spouse committed a wrong which led to the destruction of the marital relationship. If you prove fault to the satisfaction of the judge, it can have an effect on how the court divides the property including debts and assets. There are seven grounds for divorce in Texas: insupportability (no-fault), cruelty, adultery, abandonment, living apart, confinement in a mental hospital, and conviction of a felony.
Cruelty is when one spouse wilfully causes pain or suffering to the other, and the person treats the other so badly that they can no longer live together. Cruelty contemplates either mental or physical abuse. It is a fact-sensitive inquiry. Most judges agree that trivial disagreements would not be enough to justify the granting of a divorce on cruelty grounds.
Adultery is voluntary sexual intercourse of one of the spouses with someone who is not their husband or wife. While adultery can be proven with circumstantial evidence, it is still a relatively heavy burden to prove. Receipts or bank statements which show grandiose trips that one spouse did not go on or purchases of lingerie or jewelry is compelling. But suggestions, suspicions, and innuendo does not go far enough in proving adultery for Texas judges. In many cases where adultery is alleged, the help of a private investigator can be critical in gathering the requisite proof.
A spouse will have abandoned the other if they left with the intention of doing so and have stayed away for at least one continuous year. The key thing to prove here is the other party’s intent. So, if the spouse intended to leave, but came back for a few nights without any intention to stay, this would still be considered a continuous year. However, if the spouse returned during that time to try to reconcile the relationship, then the time period would start over after the spouse left for a second time. Evidence such as text messages or emails which demonstrates their intent would be useful in demonstrating abandonment.
The last three reasons are far less common. If the other spouse has been confined in a mental hospital for at least three years when the suit is filed, and that person’s mental health is so severe that adjustment is unlikely or relapse is probable, a divorce can be granted. When it comes to living apart, a divorce will only be granted if it can be shown that the spouses have lived separate and apart, without cohabitation, for at least three years. If your spouse has been convicted of a felony and imprisoned for at least a year, without pardon, then this will be sufficient grounds for a judge to grant your divorce. It can be either a state or federal criminal conviction.
In most cases, you will find that a no-fault divorce is the appropriate kind of divorce for you. It is inherently more private and probably less traumatic for everyone involved. Regardless, you should seek the advice of an experienced family lawyer who can help you make the right choice for your particular circumstances.