Area of Law:
Divorce may be defined as the legal ending of a marriage. Married couples do not have a legal or a constitutional right to seek a divorce, but states like Texas generally accord divorces because to force a couple to stay married would be against public policy.
"No-fault" and "fault" are the two types of grounds, or justifications, for divorce in the United States. In some states, no-fault is the only acceptable justification for a divorce, even if fault grounds exist within the marriage. The other states, including Texas, allow the parties to select either a no-fault or a fault divorce.
The United States first adopted the concept of a no-fault divorce in the late 1960's, and nearly all of the states currently allow for some variation of it. A no-fault divorce is one in which the people involved do not legally fault, or blame, each other for the divorce. Some examples of the justifications for a no-fault divorce include “irreconcilable differences,” “irretrievable breakdown,” or “incompatibility.” One spouse cannot usually stop a no-fault divorce, simply because when one spouse wants a divorce and the other spouse does not, this constitutes irreconcilable differences, which justifies a no-fault divorce.
The only basis for a no-fault divorce in Texas is “insupportability,” which means that the marriage has become "insupportable" due to conflict between the parties and that there is no reasonable expectation of reconciliation. For more information about grounds for divorce in Texas, visit Texas Divorce Laws.
Many states require a "cooling-off" period of separation for a specific period of time before no-fault divorce proceedings can begin. During this time, the couple is mandated to live separate and apart with the intent that the separation will be permanent. The duration of the cooling-off period varies according to state law. In Texas, the waiting period is 60 days from when the divorce suit was filed. According to Texas law, neither party may remarry before the 31st day after the divorce decree is signed, although the court may waive this requirement.
Some states also allow fault grounds for divorce. Fault grounds for divorce in Texas include adultery, cruelty or violence, abandonment or desertion for at least one year, insanity resulting in confinement for at least three years, and conviction of a felony and imprisonment for at least one year, unless the spouse testifies against the convicted spouse.
There are several “defenses,” or denials, that are sometimes used regarding fault divorces. In Texas, condonation is a defense only when there is reasonable expectation of reconciliation. The condonation defense is sometimes used when a party condoned a certain spousal behavior during the marriage and then attempts to use it as fault grounds for divorce. Defenses to divorce like condonation are not used often, however, perhaps because they require witnesses and additional court time, which is expensive and can drag out the divorce. Another reason may be that even if the defense is proven, courts will typically still grant the divorce rather than require the couple to remain married when at least one spouse does not wish to do so.
The specific grounds required for divorce vary widely across the United States. The American Bar Association provides a variety of information regarding divorce requirements state by state on their Section of Family Law website. A chart comparing all 50 states, including Texas, can be found at abanet.org.
*An example of a Texas Divorce Settlement Agreement can be seen on Free Legal Aid.