Grounds for Divorce in Texas — Fault vs. No-Fault and Why It Matters for Property Division

Texas is one of a shrinking number of states that still recognizes fault-based grounds for divorce — and the decision about which ground to plead is not merely a formality. Under Texas Family Code Section 7.001, a court is required to divide the marital estate in a manner that is “just and right, having due regard for the rights of each party and any children of the marriage.” That standard gives judges substantial discretion, and fault in the breakup of the marriage is one of the factors Texas courts are expressly authorized to consider when determining what a just and right division looks like in a specific case.

Understanding the available grounds for divorce in Texas, the evidence required to prove fault, and the realistic effect fault has on property division in Bexar County courts is essential for anyone entering a divorce where one spouse’s conduct is a significant part of the story.

The No-Fault Ground — Insupportability

Texas Family Code Section 6.001 provides the no-fault ground for divorce: insupportability. A divorce is granted on the ground of insupportability when the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation.

In practical terms, insupportability means the marriage is irretrievably broken and the parties cannot get along. No specific conduct needs to be proven. No one needs to be at fault. The petitioning spouse simply alleges that the marriage has become insupportable, and that allegation — if not credibly contested — is sufficient to obtain a divorce. The vast majority of Texas divorces are granted on the ground of insupportability because it is the simplest path to the decree and avoids the evidentiary burden of proving specific misconduct.

The decision to plead only insupportability does not necessarily mean that fault is irrelevant to the case. Even when a divorce is granted on no-fault grounds, the court can still consider evidence of one spouse’s marital misconduct when dividing the community estate. The ground for divorce and the factors the court weighs in property division are related but distinct inquiries.

The Fault Grounds — What Texas Law Recognizes

Texas Family Code Chapter 6 recognizes six fault-based grounds for divorce in addition to insupportability.

• Cruelty under Section 6.002 requires proof that one spouse treated the other with such cruelty that living together is insupportable. This ground covers physical abuse but also encompasses sustained patterns of emotional abuse, controlling behavior, and psychological harm that rise to the level of rendering the marital relationship untenable. Cruelty is the most commonly pleaded fault ground in Texas divorces and the one courts in Bexar County see most frequently.
• Adultery under Section 6.003 requires proof that one spouse engaged in voluntary sexual intercourse with someone other than their spouse during the marriage. Circumstantial evidence — text messages, social media communications, financial records showing expenditures related to the affair, witness testimony, and in some cases private investigator documentation — is admissible to establish adultery when direct evidence is unavailable. An admission by the offending spouse, while uncommon, is conclusive.
• Felony conviction under Section 6.004 applies when one spouse has been convicted of a felony during the marriage, has been imprisoned for at least one year in the Texas Department of Criminal Justice, a federal penitentiary, or a penitentiary of another state, and has not been pardoned. This ground is rarely contested — the conviction itself establishes the ground.
• Abandonment under Section 6.005 requires proof that one spouse voluntarily left the other with the intention of abandonment and remained away for at least one year.
• Living apart under Section 6.006 applies when the spouses have lived apart without cohabitation for at least three years.
• Confinement in a mental hospital under Section 6.008 applies when one spouse has been confined in a state mental hospital or a private mental hospital for at least three years and the mental disorder is of such a degree and nature that adjustment is unlikely or if adjustment occurs relapse is probable.

How Fault Affects Property Division in Texas

This is the question most people actually want answered — and the honest answer requires understanding both what the law permits and what Bexar County courts actually do in practice.

Texas Family Code Section 7.001 requires a just and right division of the community estate, and Texas appellate courts have consistently held that fault in the breakup of the marriage is a legitimate factor a trial court may consider in determining what division is just and right. This means a judge who finds that one spouse committed adultery, engaged in cruelty, or otherwise caused the marriage to fail has legal authority to award the innocent spouse a disproportionate share of the community estate as a consequence.

The practical effect varies significantly depending on the severity of the fault, the nature of the marital estate, and the specific judge hearing the case. A judge in Bexar County family court who finds credible evidence of sustained physical abuse, long-term adultery, or deliberate waste of marital assets may award the innocent spouse 55, 60, or in extreme cases 65 percent or more of the community estate. In cases where the fault was less severe — a single incident of infidelity, for example, versus a prolonged affair — the property division adjustment may be more modest.

Fault also intersects with another property division factor that courts consider independently of grounds: waste of community assets. When one spouse spent marital funds on an affair partner — travel, gifts, hotel stays, cash transfers — those expenditures may be characterized as waste of community property, and the court can reconstruct the estate as if those funds had not been dissipated, awarding the innocent spouse a credit for the wasted amount. Waste claims require specific financial documentation and are pursued through discovery — subpoenas for financial records, credit card statements, and bank account histories that document where the money actually went.

When Fault Is Worth Pursuing — and When It Is Not

Pleading fault grounds and litigating them through discovery and trial is a significant undertaking that adds time, cost, and emotional difficulty to an already difficult process. The decision about whether to pursue fault allegations requires a realistic assessment of the evidence available, the likely effect on property division given the size of the marital estate, and whether the court’s probable adjustment to the property split justifies the additional litigation expense.

In cases involving a large marital estate — where a 10 percent adjustment in the property division represents a substantial sum — and credible documentary evidence of fault, pursuing fault grounds through discovery and presenting that evidence at trial or in mediation can produce an outcome that is materially better than a 50-50 division. In cases involving a modest estate where the mathematical difference between a 50-50 and a 55-45 split is small, the same litigation strategy may cost more than it recovers.

Fault allegations also affect the dynamic of mediation in ways that go beyond the direct property division adjustment. A respondent spouse who knows that the petitioner has documentary evidence of adultery or financial dissipation — and that a Bexar County judge will see that evidence at trial — has a different incentive to negotiate than one who faces only a no-fault insupportability pleading. The credible threat of a fault-based property division adjustment frequently produces more favorable mediated outcomes than the adjustment itself would produce at trial, because it creates pressure to settle on terms the respondent might not otherwise accept.

The decision about which grounds to plead, what evidence to pursue in discovery, and how to use fault allegations in negotiation is one of the earliest and most consequential strategic choices in a Texas divorce. Making it without understanding the full legal and practical landscape — or without an attorney who has litigated fault-based divorce cases in Bexar County courts — produces outcomes that are difficult to correct after the fact.

If you are considering divorce or are in a child custody dispute in San Antonio or anywhere in Bexar County and want an honest assessment of whether fault grounds are relevant to your situation, call Barton & Associates at 210-500-0000. Consultations are free, confidential, and available 24 hours a day.