In Texas, the sad reality is that if your spouse wants a divorce, they will get it. Texas is a “no-fault” state, meaning there is no requirement that fault grounds be proven to get a divorce. The only legal ground necessary is to show the marriage has become “insupportable.” In simple terms, if one spouse wants a divorce, they will get it.
This does not mean that a divorce is automatically granted after filing a divorce petition. If the parties can agree to all of the terms for a divorce, including provisions for children, if any, and division of the parties' marital assets and debts, then the divorce can be granted relatively quickly (but only after a required 60-day waiting period has expired). But suppose the spouses disagree on any of these issues. In that case, the case is considered “contested.” Any disputed issues must be resolved either by agreement (after discovery and negotiation/mediation) or by a trial.
For a Texas Court to grant a divorce, it must first have “jurisdiction,” that is, the official power to make a judgment and render an order such as a Final Decree of Divorce. Jurisdiction to grant a divorce requires that at least one of the spouses be a domiciliary of Texas for six months preceding the date of filing AND a resident of the County in which the suit is filed for the preceding 90-day period.
In addition to the residency and jurisdictional requirements, a divorce may not be granted before the expiration of at least sixty days following the filing of the divorce suit. This sixty-day time period is the so-called “waiting period” that must elapse before the divorce can be granted (also known as the “cooling-off” period). This requirement is intended to ensure that a divorce is not granted during a period of anger without having a reasonable amount of time to “cool off” and reflect on whether a divorce is warranted.
Like most things in the law, there are exceptions to the required cooling-off period. A court may waive the waiting period if it finds the Respondent has been convicted of or received deferred adjudication for an offense involving family violence or in cases where a Petitioner has an active protective order against the Respondent due to family violence committed during the marriage.
Grounds for Divorce
The “no-fault” ground for a Texas divorce is “insupportability.” On the petition of either party to a marriage, the court may grant a divorce without regard to fault if the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation. No other legal ground is required to get a divorce in Texas.
While Texas requires there be no fault to get a divorce, there are specific “fault grounds” that can be asserted in a divorce case. Generally, a party will allege fault in the break-up of the marriage to gain leverage in the case and assert a right to receive a disproportionate share (that is, more than 50%) of the marital assets.
In addition to insupportability, six statutory grounds can be asserted, including:
- CRUELTY – the court may grant a divorce in favor of a spouse if the other is guilty of cruel treatment toward the complaining spouse of a nature that renders further living together insupportable. This is one of the “fault” grounds and is often asserted to try and secure a disproportionate share of the marital estate.
- ADULTERY – the court may grant a divorce in favor of a spouse if the other has committed adultery. This authorizes the judge to award a disproportionate share to the innocent spouse. However, as a practical matter, cheating is so common that judges rarely are shocked or surprised when it occurs in a marriage. The defense will often assert that the marriage was already broken, and the affair was just a by-product of the failed marriage and not a fault in the breakup.
- CONVICTION OF FELONY – the court may grant a divorce in favor of a spouse if the other has been convicted of a felony during the marriage, has been imprisoned for at least one year, and has not been pardoned. However, the court may not grant a divorce under this section against a spouse who was convicted on the testimony of the other spouse.
- ABANDONMENT - the court may grant a divorce in favor of a spouse if the other left the complaining spouse with the intention of abandonment and remained away for at least one year. This ground is not often asserted, as insupportability is all that is needed to get a divorce. However, abandoning a spouse, particularly when financial consequences affect the other spouse or children, can provide a persuasive argument for an award of a disproportionate award of property.
- LIVING APART – the court may grant a divorce in favor of either spouse if they have lived apart without cohabitation for at least three years. This ground is rarely used and doesn't often benefit the spouse who asserts it. However, it can occasionally be used if cultural or religious requirements must be established as a basis for getting a divorce.
- CONFINEMENT IN MENTAL HOSPITAL – the court may grant a divorce in favor of a spouse if, at the time the suit is filed, the other has been confined in a state mental hospital or private mental hospital for at least three years and the spouse's mental disorder is of such a degree that adjustment is unlikely or if an adjustment occurs, relapse is probable. This ground isn't much help to a spouse seeking divorce but can aid the spouse confined in the hospital. The argument here is that it is a breach of the “in sickness and in health” vow.
So, What, If Anything, Can I Do Legally to Save the Marriage?
Truthfully, there isn't much legally that can be done to prevent a divorce. However, there is one provision in the Texas Family Code worth mentioning. Under Section 6.505, entitled “Counseling,” the court may direct the parties to seek marriage counseling while a divorce suit is pending. The person named by the court to counsel the parties submits a written report to the court and parties before the final hearing. In the report, the counselor only gives an opinion as to whether there exists a reasonable expectation of reconciliation of the parties and, if so, whether further counseling would be beneficial.
The report's purpose is to aid the court in determining whether the suit for divorce should be continued pending further counseling. If the court believes that there is a reasonable expectation of the parties' reconciliation, the court may continue the proceedings and order the parties to engage in further counseling for a period fixed by the court not to exceed 60 days.
At the expiration of the period specified by the court, the counselor reports to the court whether the parties have complied with the court's order. After that, the court shall proceed as in a divorce suit generally. In other words, the case proceeds, and the divorce is ultimately granted. Thus, this provision won't stop divorce and can only delay it for a short period. However, in some instances, with professional counseling, the parties may be able to salvage the marriage. Unfortunately, this relief is rarely granted by the Court as a practical matter.
Once Filed, Can A Divorce Suit Be Canceled?
Yes, but the legal term is “nonsuited,” not canceled. At any time after a divorce suit is filed, if the Petitioner changes their mind and no longer wants to pursue the divorce, a “Notice of Nonsuit” can be filed, which effectively dismisses the divorce suit. However, a party can only nonsuit their own claims and cannot nonsuit any counterclaim filed by the other party. But, if there are no counter pleadings on file by the Respondent, the Petitioner can nonsuit (dismiss) the suit for divorce as a matter of right.
If a nonsuit occurs, nothing prevents the Respondent from filing their own divorce suit (where they would become the Petitioner) or the original Petitioner from re-filing a new suit for divorce. However, once a case has been nonsuited, any further actions must be filed under a new cause number with payment of a new filing fee (in Fort Bend County, the filing fees run approximately $350). And, following a nonsuit, if a new suit is filed, the case timeline, including any answer dates, hearing dates, trial dates, etc., is completely reset as if the first case was never filed.
What Are Some Practical Things You Can Do to Try and Save Your Marriage?
Of course, if you want to try and salvage the marriage, you should make every effort to do so. There is no magic formula here. There are only things you can try that might turn things around. Therefore, during the statutory 60-day cooling-off period, it may be helpful to consider the following:
- Take a deep breath – try to determine what's really happening. Is this a threat by your spouse to get you to change your behavior, or is this an irrevocable decision? Have any steps been taken, such as moving out of the marital home or asking you to leave? Has your spouse already filed suit or retained a lawyer? While you're undoubtedly shocked, hurt, sad, and even angry, you must remain calm so you can think clearly and make rational decisions.
- Talk to your spouse – as simple as this sounds, communication is often the biggest problem in a marriage. Be honest and open, make sure your spouse knows how you feel, and explore whether there is any possibility of fixing the marriage through counseling or other support. Will your spouse agree to work with a therapist? Are you willing to consider changing any behaviors that may have contributed to a breakdown of the marriage?
- Consider what brought your spouse to this decision - is there anything you might do that would make them change their mind? It might be too late, but you can at least offer to change – as long as you are sincere and won't regret it later.
- Try and slow things down – see if your spouse will agree to pause and take things slowly so you both can focus on your feelings before moving forward with the legal process.
- Consider “nesting” if you have children – this means you have separated but continue to live together or at least keep the kid's lives undisrupted while you and your spouse focus on your relationship and think through the many decisions you will have to make regarding your children. Remember, neither of you will divorce your children, and like it or not; you are forever joined together through your children.
- Discuss a non-adversarial alternative to litigation – since a divorce will happen if one spouse wants it, you can try a more friendly process that won't tear each other apart. Consider mediation or a “collaborative” divorce. At a minimum, ask your spouse to commit to a peaceful divorce process. Do everything you can to stay out of court. Divorce does not have to be an all-out war.
- Accept the situation – it only takes one person to end a marriage, but it takes two people to save it. If your spouse has moved on emotionally, your pleas and promises probably won't bring them back. For your sanity, accept the reality, understand that you can't control another's decisions, and let go. Do you really want to remain married to someone who does not want to be married to you?
- Focus on rebuilding your life and the joy that a fresh start can bring. Although it may feel like it, it is not the end of the world. You are not alone. You will survive! Try to imagine how great your life will be two years from now. Focus on your future instead of the past, and you will make it.
- Importantly, if divorce is inevitable, you should take steps to protect yourself legally.
If you've tried to salvage the marriage, but it looks like divorce is inevitable, you should take steps to protect yourself, your children, and your finances.
Don't Forget to Mediate!
Most family law cases must be mediated at least once before proceeding to a final trial. In fact, most courts will also require mediation in cases involving disputes over custody, visitation, or child support hearing temporary orders. Armatys Millard can help with both! We understand the issues for temporary orders and for a final trial, and we will give you the benefit of our years of judicial experience and knowledge.
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Walter Armatys and John Millard have significant family law experience, both as trial lawyers and as Family Court Judges. This judicial experience gave Walter and John a keen insight into how Judges think, what persuades them, what annoys them, and, importantly, what information Judges need to make an appropriate ruling. Armatys Millard provides mediation and arbitration services for family law disputes pending in Fort Bend, Harris, and surrounding counties. You can count on our extensive family law experience and judicial wisdom to help successfully resolve your case.
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