Defenses to Fault-Based Divorce

While there is often an identifiable reason that couples want to end their marriage, many nonetheless opt for a no-fault divorce. In some cases, though, one spouse may want to hold the other legally responsible for the marriage's breakdown and, therefore, will seek a fault-based divorce. Merely because one spouse argues that the other caused the downfall of the marriage does not mean the courts will accept the allegations as true, however, and there are often defenses to marital fault-based divorce actions. If you are considering pursuing a fault divorce or have recently been served with legal documents initiating a fault divorce, it is highly recommended that you consult with a lawyer promptly. The dedicated Dallas divorce attorneys of McClure Law Group have extensive experience handling contentious divorce actions, and if you hire us, we will aggressively advocate on your behalf.

The Texas Family Law Code (the Code) establishes the grounds for seeking a fault-based divorce. Specifically, the Code provides that a party may seek a divorce on the grounds of cruelty, adultery, abandonment, conviction of a felony, living apart, and confinement in a mental hospital. The party seeking a divorce on fault-based grounds must prove that the responding spouse caused the downfall of the marriage. Generally, parties can rely on circumstantial or direct evidence to establish fault. Whether a party establishes fault can impact the outcome of the case, as it can compel the court to grant a larger share of community property to the innocent party during the distribution of property.

When a divorce is filed on fault-based grounds, the accused spouse has the opportunity to present defenses to challenge the allegations. The precise defenses available will depend on the facts of the case, but some are more frequently asserted than others.

One common defense is simply denying the allegations made by the accusing party. The accused spouse can argue that the alleged misconduct did not occur or that there is insufficient evidence to support the claims. This defense typically requires the accused party to provide counter-evidence or witnesses to refute the allegations.

Another defense available in fault-based divorce cases in Texas is condonation, which is the term Texas uses for consent or forgiveness. The accused spouse can argue that the other party knew about the alleged misconduct and chose to continue the marriage anyway. This defense can be particularly relevant in cases of adultery, where the accusing party knew about the affair but continued to live with the accused spouse without objection. The Code provides, however, that condonation can only be asserted as a defense in a fault-based divorce if the court founds that the parties reasonably expected to reconcile.

Provocation is a defense that asserts the accusing party's actions or behavior provoked the alleged misconduct by the accused spouse. The accused spouse argues that they acted in response to the actions or behavior of the accusing party. However, it is important to note that provocation is not a valid defense for certain fault-based grounds such as abandonment or adultery.

Notably, the Code expressly states that recrimination is not available as a defense in fault-based divorce actions. In other words, the accused spouse cannot argue that both parties engaged in acts that would be considered fault-based grounds for divorce, and therefore, the accusing party should not be granted a divorce on those grounds. The Code prohibits parties from asserting adultery as a defense as well.

Fault-based divorces are often not only contentious but also legally complex. If you or your spouse intend to assert fault in a divorce action, it is critical to speak to an attorney about the defenses to fault-based divorce. At McClure Law Group, our experienced Dallas divorce attorneys have the knowledge needed to help you fight to protect your rights during divorce proceedings, and if we represent you, we will set forth compelling arguments on your behalf. Our main office is conveniently located in Dallas, and we also offer consultations at our Collin-County office in Plano. We proudly serve clients in Dallas, Richardson, McKinney, Rockwall, Irving, Fort Worth, Garland, Frisco, and other cities within Dallas, Rockwall, Grayson, Collin, Denton, and Tarrant Counties. To schedule a meeting, you can reach us through our online form or by calling 214.692.8200.