Because the Texas Family Code allows for no-fault divorce, many Texans who are considering filing for divorce believe that fault won't make a difference in their divorce proceedings. This is not true. Because no-fault divorces are allowed in Texas, a spouse cannot prevent a divorce decree by forcing the filing spouse to prove fault. However, proving fault can have a significant effect on several important elements of a divorce settlement.
For-fault divorce and community property
In both no-fault and for-fault divorce actions, the court is not required to divide community property equally. Courts in Texas base the division of marital property on number of factors, including income disparities and custody of any children.
However, Texas courts do explicitly take into consideration any proven fault that led to the dissolution of the marriage, such as adultery or cruelty on the part of one spouse. Therefore, choosing to pursue a no-fault divorce settlement when you have grounds for a fault-based divorce action can potentially reduce the value of your divorce settlement.
For-fault divorce and alimony
Determination of fault plays a similar role in establishing alimony support payments. Generally, the fault of a partner providing spousal maintenance does not matter unless domestic violence has been demonstrated. However, if it can be shown that a spouse was at fault in the divorce proceedings, alimony paid to the at-fault spouse may be reduced. For example, a spouse who is proven to have committed adultery may find his or her spousal support lowered.
For-fault divorce and child custody
In Texas, physical and legal custody of minor children is awarded based on the best interests of the children. Generally, the proven fault of a spouse in a divorce proceeding will not affect the determination of custody. However, if a divorce action is predicated on one spouse's physical abuse of the other - even if no abuse of the child has been demonstrated - the family court judge may take this abuse into consideration when determining custody.
What to do if you are considering a divorce in Texas
If you are considering pursuing a divorce action in Texas and want to know if you have grounds for a for-fault divorce, contact an experienced family law attorney in order to understand your legal options and to protect your rights.