Evidence in Fault Based Divorce Cases

What Constitutes a Fault-Based Divorce in Texas

The Texas Family Code outlines seven grounds for divorce, with the first being insupportability, which is equivalent to a no-fault divorce. This means that the court can grant a divorce without assigning blame to either spouse. The other six grounds, including cruelty, adultery, conviction of a felony, living apart, abandonment, and confinement in a mental hospital, are considered fault-based. If the court grants a divorce based on fault, it will favor one spouse, which may affect the division of community property and spousal maintenance.

Evidence for a Fault-Based Divorce

In fault-based divorce cases, the type of evidence required to establish the grounds for divorce may vary depending on the grounds being asserted. Some fault-based grounds are relatively easy to establish. For instance, if a person seeks a divorce based on their spouse's conviction of a felony, they only need to provide evidence that their spouse was convicted of a felony, has been in prison for at least one year, and has not been pardoned. Similarly, if a party seeks a divorce due to their spouse's confinement in a mental hospital, they must offer proof of their spouse's confinement for at least three years and provide evidence that their spouse's mental disorder is severe enough that adjusting is unlikely and relapse is probable. Medical records and testimony from mental health experts can be used to establish the spouse's mental-health status.

However, establishing other fault-based grounds can be less straightforward. For example, proving adultery as grounds for divorce can be difficult as parties often lack direct evidence. Nevertheless, circumstantial evidence can be used to establish adultery. In fault divorce cases where adultery is alleged, voicemails, emails, text messages, photographs, and surveillance footage are often presented as evidence.

A party alleging abandonment as grounds for divorce must demonstrate that their spouse left their marital home with the intention of remaining away for a minimum of one year. Finally, cruelty can be established by showing that a party engaged in willful acts with the intent of causing their spouse pain and suffering.

Categories of Fault Based Divorce

A divorce in Texas may also be granted in favor of a spouse on fault grounds. There are four distinct categories for filing a fault-based divorce in Texas:

- Cruelty
- Adultery
- Felony conviction
- Abandonment