What Does It Mean to Have Fault/No-Fault Divorce?

Texas permits divorce on both fault and no-fault grounds, giving parties the option to end a marriage without assigning blame or to pursue a divorce based on specific misconduct by one spouse. Understanding the difference between these two approaches — and the practical consequences of each — is important for anyone considering a divorce in Texas.

The most common no-fault ground for divorce in Texas is "insupportability," codified under Section 6.001 of the Texas Family Code. Insupportability means that 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. In plain terms, neither party needs to prove wrongdoing — it is sufficient that the marriage is no longer working and cannot be repaired.

Fault-based grounds for divorce are set out in Sections 6.002 through 6.007 of the Texas Family Code. These include cruelty, adultery, conviction of a felony, abandonment, living apart for at least three years, and confinement to a mental hospital. To obtain a fault-based divorce, the filing spouse must prove the alleged ground by a preponderance of the evidence, which adds complexity and cost to the proceedings.

The choice between fault and no-fault grounds has real consequences beyond the legal theory. When a court finds that one spouse is at fault for the breakup of the marriage, it may award a disproportionate share of the community property to the innocent spouse. Fault can also affect spousal maintenance determinations and, in some cases, conservatorship decisions if the conduct involved family violence or behavior harmful to children.

In many cases, parties initially file on no-fault grounds to keep the process simpler and less contentious. However, if evidence of serious misconduct emerges during the case, the petition can be amended to include fault grounds. The decision of whether to pursue a fault or no-fault divorce should be made carefully, weighing the potential financial benefits against the additional time, cost, and emotional toll of proving fault at trial.