Fault vs No Fault Divorce

A broken heart resting on a gavel stand with two wedding rings on it, beside a gavel, under the words fault vs no fault divorceIf you’re looking to get divorced in the state of Texas, you’re not alone; the divorce rate in Texas hovers at about 10.7 percent, which is on par with the overall divorce rate in the U.S. One thing that sets Texas apart from most other states, however, is that the state offers both fault and no-fault divorces. If you do decide to get divorced in Texas, you will have to decide whether you want to file for a fault divorce or a no-fault divorce. Here are the elements of each and how to qualify for each kind of divorce:

Fault Divorce in Texas

In order to obtain a fault divorce in Texas, you must prove that someone is the catalyst for the divorce. The process for a fault divorce can be more complicated than the one for a no-fault divorce; however, there may be some cases where a fault divorce is worth the extra work. For example, if you wish to lay the groundwork for a particular outcome, such as being awarded sole custody, a fault divorce may be the way to go.

There are four grounds upon which a fault divorce may be obtained in Texas. To be successful, you and your attorney must prove one of the following:


Cruelty implies the willful, persistent infliction of suffering, both mental and physical. If you can prove that your spouse was cruel to you, this may allow you to obtain a fault divorce. While gross cases of cruelty may be easier to prove, you don’t necessarily need evidence of physical abuse or another outrageous act – the court will consider an accumulation of small acts as cruelty.


If you can prove that your spouse cheated on you during your marriage or during your separation, you may be able to file a fault divorce. This is an advantageous strategy if you’re seeking reimbursement of marital funds that may have been spent on your spouse’s lover.

Felony Conviction

If your spouse commits a felony, you may be able to obtain a fault divorce. In most cases, to qualify for a fault divorce, your spouse must have been incarcerated and unable to support you for the period of one year. However, if felony charges were filed as a result of something your spouse did to you, the jail-term consideration may not apply.


You can file for a fault divorce if your spouse leaves and does not return or show any signs of returning for one year.

It can be more difficult to prove a fault-based case. For this reason and more, most divorces in Texas are no-fault.

No-Fault Divorce in Texas

You haven’t always been able to obtain a no-fault divorce in Texas. Before 1970, only fault divorces were granted. Since the change, Texans have been able to separate amicably even when a clear reason cannot be defined.

No-fault divorces mean just that – nobody is at fault. Neither party willfully partook in any activity that brought about the demise of the marriage. These kinds of divorces are much easier to navigate than fault cases.

No-fault divorces are filed based on one of the following criteria:


Also known as irreconcilable differences, insupportability is the most common reason for divorce in the state of Texas. All it means is that you and your spouse cannot support your marriage due to discord or conflict of personalities.

Living Apart

If you’ve been living apart from your spouse for three years or more, you can file for a no-fault divorce. This one is especially helpful if you can’t find your spouse or haven’t heard from them in a long time. Provided that you supply the proper notification, you do not need your spouse’s cooperation for this kind of divorce.

Mental Hospital

If your spouse is a resident of a mental hospital or otherwise ruled mentally incompetent, you can obtain a no-fault divorce.

The decision to file a fault vs. no-fault divorce is not one that should be taken lightly. When all is said and done, it may come down to what you can prove, which is where an attorney can help you most.

Before you make any decisions regarding how to file for divorce, you should speak to an attorney. If you have questions about fault and no-fault divorces in Texas, contact Allison Grant, Attorney at Law. Our team can help you figure out which type of divorce suits your unique circumstances.