Understanding Fault-Based Divorce in Texas: Strategic Legal Counsel for Complex Dissolutions

When “No-Fault” Isn’t Enough: The Strategic Value of Proving Fault

While Texas is a “no-fault” divorce state—allowing couples to dissolve their marriage based on “insupportability” or irreconcilable differences—the option to file for divorce on specific fault-based grounds remains a powerful legal tool. For spouses facing betrayal, cruelty, or abandonment, pursuing a fault-based divorce is not merely about assigning blame; it can be a critical strategy to achieve a more favorable outcome in terms of property division, spousal maintenance, and child custody. At Barton & Associates, Attorneys at Law, our experienced San Antonio family law attorneys understand the nuanced legal and strategic implications of proving fault. We provide assertive, evidence-driven representation for clients seeking to hold a spouse accountable for misconduct that has broken the marital covenant.

Choosing the path of a fault-based divorce is a significant decision. It transforms the dissolution from a mutual parting into an adversarial proceeding where one spouse must present clear and convincing evidence of the other’s wrongdoing. This process is inherently more complex, time-consuming, and often more emotionally charged than an uncontested, no-fault divorce. However, when successful, it can directly influence a judge’s discretion under Texas Family Code to achieve an “equitable and just” division of the community estate, potentially awarding a larger share of assets to the innocent spouse. Our role is to provide clear-eyed counsel on whether pursuing fault is strategically advantageous for your goals and to build a compelling, evidence-backed case when it is.

The Recognized Fault Grounds in Texas

The Texas Family Code specifies several grounds upon which a fault-based divorce can be granted. Each requires meeting a specific legal definition and standard of proof.

1. Cruelty (Also Called Cruel Treatment)

This is one of the most commonly cited fault grounds. It involves treatment by one spouse that renders continued living together insupportable. Importantly, “cruelty” in Texas divorce law is not limited to physical violence. It can encompass a prolonged pattern of emotional and psychological abuse, including:

• Verbal abuse, threats, and intimidation that create a reasonable fear of bodily harm.
• Humiliating or demeaning treatment in private or public.
• A sustained course of conduct designed to control, isolate, or break down the other spouse’s mental well-being.

2. Adultery

Adultery is defined as voluntary sexual intercourse between a married person and someone who is not their spouse. Proving adultery in court can be challenging, as direct evidence (like photographs or eyewitness testimony) is rare. However, Texas courts allow for circumstantial evidence to create a reasonable inference of adultery. This can include evidence of an intimate relationship, such as text messages, emails, hotel receipts, or testimony about a spouse’s behavior and reputation in the community.

3. Conviction of a Felony

A spouse may file for divorce if the other spouse has been convicted of a felony, provided the convicted spouse has been imprisoned for at least one year in a state or federal penitentiary and has not been pardoned. The conviction itself is the evidence, simplifying proof but requiring careful attention to the timing and nature of the sentence.

4. Abandonment

Abandonment, or “desertion,” occurs when one spouse leaves the other with the intention of abandonment and remains away for at least one year. The leaving must be voluntary and against the wishes of the spouse who remains. Simply living apart is not enough; there must be an intent to abandon the marital relationship permanently.

5. Living Apart

Spouses may file on this ground if they have lived apart without cohabitation for at least three years. This is distinct from abandonment, as it does not require proof of intent to desert, only proof of the factual separation.

6. Confinement in a Mental Hospital

A divorce may be granted if a spouse has been confined in a state or private mental hospital for at least three years, and there is medical evidence indicating that the mental disorder is incurable and that the confined spouse is unlikely to recover.

The Strategic Advantages of Proving Fault in a Texas Divorce

Filing for a fault-based divorce is a strategic legal maneuver with potentially significant consequences. The primary advantage is that it can alter the outcome of financial and custodial determinations.

• Influence on Property Division: Texas courts are required to divide community property in a manner that is “just and right.” While this does not automatically mean a 50/50 split, proving fault gives the judge a clear, statutory reason to award a disproportionately larger share of the marital estate to the innocent spouse. For example, a spouse who dissipated community funds on an affair or whose cruelty necessitated extensive therapy costs may be penalized in the final division.
• Impact on Spousal Maintenance: Texas has restrictive laws regarding spousal maintenance (alimony). Proving that a spouse committed adultery or was convicted of family violence against the other spouse or the child can affect both eligibility and the amount of support awarded, potentially increasing what the innocent spouse receives.
• Relevance in Child Custody Determinations: While the “best interest of the child” is always the primary standard, a spouse’s misconduct can be highly relevant to custody and visitation orders. Evidence of cruelty, domestic violence, or a pattern of irresponsible behavior (such as that associated with adultery, like introducing children to a paramour) can persuade a court that a parent’s behavior is harmful to the child’s emotional welfare, impacting decisions on conservatorship and possession.

The Barton & Associates Approach to Fault-Based Divorce Cases

We handle fault-based divorces with a meticulous, evidence-focused strategy designed to leverage the legal advantages while managing the emotional intensity of the process.

1. Strategic Case Assessment & Grounds Selection

Our first step is a thorough analysis of your situation. We will review the facts, your evidence, and your ultimate goals to determine if pursuing a fault-based divorce is your best strategic path. We will advise on which specific ground (or combination of grounds) is strongest and has the clearest connection to your desired outcomes regarding assets, support, or children.

2. Meticulous Evidence Gathering & Preservation

Success in a fault-based divorce hinges on the quality of evidence. We guide you in properly collecting and preserving all relevant proof, which may include:

• Documentary Evidence: Financial records, credit card statements, phone records, emails, and text messages.
• Digital Evidence: Social media posts, location data, and other electronic footprints.
• Testimonial Evidence: Identifying and interviewing potential witnesses.
• Expert Testimony: Engaging mental health professionals to document the effects of cruelty or financial forensic experts to trace misused funds.We ensure all evidence is obtained legally and is admissible in court.

3. Aggressive Litigation & Trial Advocacy

Fault-based divorces are highly contested and frequently proceed to trial. Our attorneys are seasoned litigators with significant courtroom experience. We are skilled at presenting complex evidence in a compelling narrative, cross-examining opposing witnesses, and making persuasive legal arguments to the judge about why fault should materially influence the final orders. Our reputation as formidable trial attorneys also strengthens our position in settlement negotiations.

4. Integrated Resolution Strategy

Even in a fault-based case, settlement is often possible and can be preferable to the cost and exposure of a trial. We engage in strategic negotiations, using the strength of our evidence as leverage to secure favorable settlements on property division, support, and custody—outcomes that reflect the misconduct without the unpredictability of a judge’s final ruling.

Why Choose Barton & Associates for Your Fault-Based Divorce?

• Strategic, Not Emotional, Advocacy: We help you focus on the legal and financial objectives of your case, providing calm, rational guidance even when emotions run high.
• Deep Knowledge of Texas Family Law: Our attorneys are well-versed in the intricacies of the Texas Family Code regarding fault grounds and their implications.
• Resources for Complex Discovery: We have the tools and network to conduct thorough investigations, working with private investigators and forensic experts when necessary.
• A Reputation for Success: Our track record in contested divorces demonstrates our ability to achieve results for our clients, whether at the negotiating table or in the courtroom.

Taking the First Step Toward Accountability and Resolution

If you believe your spouse’s misconduct has fundamentally broken your marriage, you have legal options beyond a simple no-fault divorce. Pursuing a fault-based dissolution is a serious undertaking, but with skilled counsel, it can be a powerful avenue to achieve a fair and just outcome.

Contact Barton & Associates today to schedule a confidential consultation. Let our experienced San Antonio divorce attorneys evaluate the facts of your case, explain your rights under Texas law, and outline a strategic path forward. Call our office at 210-500-0000. We are ready to listen, advise, and advocate fiercely to protect your future.

Main Category: Family Law
Practice Area Category: Divorce & Separation
Barton & Associates, Attorneys at Law
115 Camaron St, San Antonio, TX 78205
Office: 210-500-0000