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Fault vs No Fault Divorce

Have you reached the point where there is no hope for saving your marriage and you can no longer work through differences with your spouse? Then it might be a time to get a divorce. Under Texas law, there are two types of divorce: no-fault and fault divorces. Below is a detailed description and explanation of both of them. 

No-fault divorce

A no-fault divorce refers to a divorce based on either an “irretrievable breakdown of the marriage” or “irreconcilable differences”. Simply put, a no-fault divorce occurs when a married couple cannot get along and there is no hope for reconciliation. By filing for a no-fault divorce, people let the court know that they are seeking a divorce that is based on irreconcilable differences. In this case, they do not have to explain the exact reasons or provide proof that the divorce is the fault of one of the spouses. In most cases, this type of divorce is less contentious than a fault divorce. However, there may be some other issues regarding spousal support, child support, child custody, and some others that need to be resolved during the divorce case. According to the statistics, most divorces in Texas are no-fault divorces. 

How to file a no-fault divorce in Texas

  • First, there are residency requirements that must be met. Either the petitioner or respondent must have lived in Texas for a minimum of 6 months, as well as in the country where they are filing for divorce for at least 3 months (90 days). They must meet both of these requirements before they can begin divorce proceedings. 
  • There are certain forms that need to be completed. If a couple does not have children, the forms include an original petition for divorce, waiver of service, answer, and final decree of divorce. Couples with children must prepare additional forms, such as Custody, Rights, and Duties Order, Exhibit Child Support Order, Exhibit Medical Support Order, Exhibit Family Information, and some others. 
  • Once the forms are filled out, it is important to make at least three copies of each: for a spouse, for the state, and for one’s own records. 
  • Bring the forms to the court clerk’s office, pay the free, and get a divorce. 

Fault Divorce

A fault divorce is a type of divorce where one of the spouses is guilty of marital delinquency. It is granted after the spouse asking for the divorce provides proof that the other party did something wrong and is responsible for the ending of the marriage. Among the most common reasons for granting a fault divorce are the following: 

  • Adultery. A formal definition of adultery is the following: “The voluntary sexual intercourse of a married person with another person who is not the husband or wife of the offender”. 
  • Cruelty. It includes physical or mental abuse and inhumane circumstances. 
  • Felony conviction. This is when one of the spouses has been convicted of a felony or has been imprisoned for at least one year. 
  • Abandonment for a certain period of time. Abandonment means that a spouse has left voluntarily and had no intention of coming back. 
  • Living apart. Even though usually this is a no-fault type of divorce, living apart still can be used as the basis for a fault divorce. These grounds are available when a spouse has been away from home for at least 3 years, voluntarily moved to a separate house, or just left the marital home. 

There may be a case when both spouses are seeking a fault divorce and both can prove that the other spouse is guilty of marital misconduct. In this case, the court decides which one is least at fault, and that party is granted the divorce. It is known as “comparative rectitude”. 

Is it easy to get a fault divorce in Texas?

Most divorces in Texas are no-fault divorces because they are more convenient, easier, and cheaper. Fault divorces are less common and more difficult for several reasons. First, because the evidence is required to prove that the allegations are true. For example, if a spouse has committed adultery, the other spouse has to identify when and where the affair took place and the person who was involved in this affair with the spouse. Moreover, fault divorces take longer and are more expensive than no-fault divorces. 

We know that divorce is a stressful and emotional experience. At Setzer Law Firm, we are here to help you and guide you through these trying times. We have over 30 years of combined legal experience and we have helped hundreds of clients throughout Dallas/Fort Worth Metroplex. If there is no hope for marriage reconciliation and you consider getting a divorce, do not hesitate to contact us to arrange the first consultation.

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Southlake Office - Principal Office

300 Morrison Park Drive, Suite 110, Southlake, TX 76092

Phone : 817-424-5050