Why is everyone talking about fault and no-fault divorce lately?
Fault divorces have been in the news lately in Texas because Representative Matt Krause from Fort Worth authored a bill that would get rid of so-called “no-fault” divorces in Texas. Right now, all fifty states allow for a no-fault divorce. Currently under the Texas Family Code a Judge can grant a divorce based on either “fault” or “no-fault” grounds. This fault or no-fault option is something that only 17 states and the District of Columbia currently allow. “No-fault” is known by family law attorneys as insupportability, basically there is no proof required to obtain a divorce based on the ground of insupportability. Section 6.001 of the family code simply states, “[o]n the petition of either party to a marriage, the court may grant a divorce without regard to fault if the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.” Most family law attorneys say the majority of divorces that they file are based on insupportability because it speeds up the process and reduces the stress related to divorce for many parties.
According to Representative Krause, the bill in its current draft would not actually get rid of all no-fault divorces. The bill in its current form would only apply to divorces with children or “unilateral” divorces. Basically, if there are no children of the parties seeking the divorce and both parties agree that they want to get divorced this bill would not apply and the ground of insupportability would still be available to obtain a divorce. The idea behind this according to proponents of the bill is to promote stability for children and prevent quick acting divorces. Opponents of the bill worry that this bill would increase the cost of divorce and lead to an increase in domestic violence as a result of parties being unable to easily obtain a divorce.
Why do I care whether my divorce is fault or no-fault?
Besides the obvious possible harm to reputation that can be caused by having to prove a reason in open court that your spouse caused the end of your marriage, there is the practical ramification of having a fault divorce that the party at fault receives a lesser distribution of the marital estate. In the majority of no-fault divorces, the court or the parties split community property 50/50 and the parties go down the road without having to get into the nitty-gritty downfalls of their relationship. In a fault divorce, in addition to the need to get into all of the bad things that happened in your marriage and open your personal life up to the court, the party who is at fault for the divorce is subject to an unequal distribution of the marital estate in a manner that is determined to be “just and right” by the trial judge. As with most family law issues, when it comes to granting a ground of fault divorce and when it comes to deciding what is a “just and right” division of the community estate the trial judge is held to an abuse-of-discretion standard. Abuse-of-discretion essentially means that the trial judge is given broad discretion in decision-making and the appellate court will almost always defer to the trial court’s decision when reviewing these issues on appeal.
According to Representative Krause’s Facebook, in an attempt to alleviate the harm to reputation of having to prove fault to obtain a divorce the bill in its current form provides that the divorce records would be sealed. Proponents of the bill say this will prevent children from looking at divorce records in the future to find out who caused the divorce. Practically speaking this won’t do much to prevent what is said in open court from becoming known to the community that a party to a divorce lives in.
What are the “fault” grounds for divorce?
If the no-fault ground provided in §6.001 is removed from the family code, the fault grounds left are: (1) cruelty, (2) adultery, (3) living apart for more than three years, (4) conviction of a felony, (5) confinement in a mental hospital, or (6) abandonment. Some of these grounds, such as conviction of a felony or confinement in a mental hospital, seem to have pretty clear standards of proof and would leave very little discretion to trial judges, however, some of the other grounds such as cruelty are not well defined and are not something that the Supreme Court of Texas has seemed eager to try to define. As was explained earlier, trial courts are given broad discretion in deciding whether or not a party has proved one of these grounds for divorce so this could be one of those issues that differs based on what court a divorce is heard in.
Currently the downside of having your divorce not granted on a fault ground would be that you still get divorced; that divorce would be on the ground of insupportability instead of based on a finding of fault. Failing to be able to meet the burden of proving a fault ground if the insupportability option is taken away would mean that you would be forced to stay married. In Texas there is no type of legal separation. If you cannot get a divorce after a valid marriage you are still married and you continue to accumulate community property that your spouse is presumed to be entitled to a just and right distribution of upon divorce. You would also not be able to enter into a subsequent marriage and you could be doing something during the divorce proceedings or after the failure to obtain the fault divorce that would be the grounds for a later fault based divorce because according to existing case law the grounds for a fault based divorce can occur after separation of the parties. If you are found at fault based on something that you did after separation you are still subject to a lesser part of the community property distribution as is determined by the trial judge so this could put some people in very interesting situations that are likely to be detrimental on many different levels.
Contact Guest and Gray if you have questions or concerns about a family law matter and would like to know your legal options. We can discuss your case and let you know what types of actions you can take.