When a marriage breaks down, you have options in Texas. An at fault divorce allows one spouse to ask the court to find the other legally responsible for the breakdown of the marriage. Unlike a no-fault divorce, which requires only that the marriage has become insupportable, an at-fault divorce requires you to prove specific grounds for the divorce. Smith & Bledsoe Family Law helps clients with fault-based divorces and explains how proving fault can affect property division and spousal support. If you’re considering an at fault divorce in Austin, attorneys at Smith & Bledsoe Family Law can guide you through the process.
What Is an At Fault Divorce in Texas?
Texas allows both fault-based and no-fault divorces. In a no-fault divorce, you state that the marriage has become insupportable—meaning the relationship cannot be repaired. You don’t need to prove anything about your spouse’s behavior.
An at-fault divorce works differently. You must prove that your spouse engaged in specific conduct that caused the marriage to fail. This approach takes more time and effort, but it can affect important issues in your case. When you prove fault, Texas courts may award you a larger share of the marital property and may consider fault when deciding spousal maintenance. The court can also consider fault when making decisions about child custody, though that impact is limited and tied to the child’s best interests.
Texas recognizes several grounds for fault-based divorce. These grounds give you legal reasons to ask the court to consider your spouse’s conduct in the divorce. Proving fault requires evidence, which is why working with an at fault divorce attorney is important.
Grounds for At Fault Divorce in Texas
Texas law recognizes four main grounds for fault-based divorce. Understanding each ground helps you determine whether an at fault divorce may make sense for your situation. Under Texas Family Code § 6.001, these grounds are clearly defined.
Adultery
Adultery occurs when a spouse engages in sexual relations with someone other than their spouse during the marriage. To prove adultery, you need evidence showing that your spouse had the opportunity and inclination to commit adultery. This can include text messages, emails, witness testimony, or other documentation. You don’t necessarily need to catch your spouse in the act—circumstantial evidence can support an adultery claim.
Cruelty
Cruelty means your spouse engaged in conduct toward you that is cruel and renders living together insupportable. This goes beyond simple disagreements or hurt feelings. Cruelty includes physical abuse, emotional abuse, threats, or other behavior that makes the marriage relationship unbearable. Examples include repeated verbal abuse, physical violence, or threats of harm. The conduct must be serious enough that a reasonable person would find it intolerable.
Abandonment
Abandonment occurs when your spouse leaves you with the intent not to return and remains away for at least one year. The key element is intent—your spouse must have left with no intention of coming back. If your spouse left temporarily or with plans to return, abandonment may not apply. The one-year separation period must be continuous.
Felony Conviction
You can use felony conviction as grounds for divorce if your spouse was convicted and imprisoned for at least one year. The conviction must be for a felony offense, and your spouse must be serving time in prison. This ground recognizes that a spouse’s serious criminal conduct affects the marriage.
How Fault Affects Property Division
Texas is a community property state. This means that property acquired during the marriage generally belongs to both spouses and is subject to division in a divorce.
When you prove fault, the court may consider that fault when deciding how to divide community property. The law allows courts to divide community property in a way that is “just and right” based on the evidence. Courts can award one spouse a larger share of marital property when that spouse proves fault. Courts may also consider marriage length, each spouse’s earning capacity, and each party’s circumstances.
Separate property—property you owned before the marriage or received as a gift or inheritance—is not divided. Fault does not change which assets qualify as separate property. However, proving fault can influence how community property is split, which often represents a significant portion of marital assets.
Fault and Spousal Support in Texas
Spousal support, also called spousal maintenance in Texas, is money one spouse may be ordered to pay to the other after divorce. Fault can play a role in spousal support decisions in some cases.
Texas courts look at multiple factors when deciding whether to award maintenance, including whether the spouse seeking support will have sufficient property to meet their reasonable needs and various statutory criteria. Courts can also consider marital misconduct, including adultery or cruel treatment, as part of this analysis. A spouse found to have engaged in serious misconduct may be more likely to pay maintenance, and misconduct can affect how the court views each spouse’s overall position.
Texas law limits spousal maintenance. Courts usually limit the paying spouse’s support obligation to a percentage of their average monthly gross income. Courts reserve longer terms for longer marriages or certain qualifying circumstances. If you seek maintenance or may need to pay it, get legal guidance. Fault allegations could affect your case.
Why Choose Smith & Bledsoe Family Law for Your At Fault Divorce
Smith & Bledsoe Family Law has a team of attorneys who handle both no-fault and fault-based divorces in Travis County and surrounding areas. The firm’s attorneys litigate contested family law matters and appear regularly in local courts.
Managing Partner Christian Smith has been selected as a Texas Super Lawyers Rising Star for 2023 and 2024 and named an Austin Monthly Top Attorney in 2023. He was also included in the National Association of Family Law Attorneys Top 10 Under 40 in 2019. The firm maintains a 5.0 Avvo rating based on 197 client reviews. The team includes multiple litigators, including attorneys who focus on trial work in complex family law disputes.
The firm’s practice is centered on family law, and the attorneys apply their knowledge of local procedures and courts when developing strategies for clients. They represent people in high-conflict divorces, property disputes, and custody matters, including cases involving LGBTQ+ families. The firm also handles challenging cases that can involve substantial assets or contested allegations.
Clients frequently note the firm’s responsiveness and communication in online reviews. When you work with Smith & Bledsoe Family Law, the legal team keeps you updated about your case and works to advocate for your objectives within the framework of Texas law.
The At Fault Divorce Process in Austin
Understanding the at fault divorce process helps you prepare for what lies ahead. The process involves several key steps.
First, you must meet residency requirements. You generally need to have lived in Texas for at least six months and in Travis County for at least 90 days before filing. Once you meet these requirements, you can file a petition for divorce in Travis County District Court.
Your petition must state the grounds for divorce. If you’re filing for an at fault divorce, you’ll specify which ground applies—adultery, cruelty, abandonment, or felony conviction. You’ll also include basic information about property, debts, and any children.
After filing, you must serve your spouse with the petition. Service means your spouse receives official notice of the divorce filing. Service can be accomplished through a process server, certified mail, or other methods approved by the court.
Texas law requires a 60-day waiting period from the date you file until the court can grant a final divorce decree. This waiting period applies to all divorces, whether fault-based or no-fault. During this period, you and your spouse can negotiate a settlement or prepare for trial.
Discovery is an important phase in at-fault divorces. Discovery means exchanging information and documents with your spouse’s attorney. You may request documents, ask written questions, and conduct depositions. For fault-based divorces, discovery often focuses on gathering evidence to support or defend against the alleged grounds for divorce, such as communications, financial records, or witness testimony.
Settlement discussions often occur during or after discovery. Many at fault divorces settle before trial when both parties understand the strength of the evidence and the likely range of outcomes. Mediation can help facilitate settlement discussions. In mediation, a neutral third party helps you and your spouse work toward agreement on property division, support, and custody issues.
If a settlement is not possible, your case proceeds to trial. Courts can consider conduct that risks a child’s safety or affects a parent’s ability to care for the child. Contested divorces can take several months or longer from filing to final decree, depending on the complexity of the case and the court’s schedule.
Frequently Asked Questions About At Fault Divorce
Do I need to prove fault to get divorced in Texas?
No. Texas allows no-fault divorce based on insupportability. You can get divorced simply by stating that the marriage has become insupportable and cannot be repaired. You don’t need to prove anything about your spouse’s behavior to obtain a no-fault divorce.
However, an at fault divorce may be worth considering in some situations. If your spouse committed adultery, cruelty, abandonment, or has a qualifying felony conviction, proving fault can influence property division and sometimes maintenance. An attorney can help you decide whether pursuing an at fault divorce makes sense for your case.
How do I prove adultery in a Texas divorce?
Proving adultery requires evidence showing that your spouse had both the opportunity and inclination to engage in sexual relations with someone other than you. Direct evidence is not always necessary.
Circumstantial evidence can be used to show adultery. This can include text messages or emails suggesting an intimate relationship, hotel or travel records, credit card receipts, or witness testimony from people who observed your spouse with another person. Phone records showing frequent contact with another person may also be relevant. An at-fault divorce attorney can help you evaluate what evidence is available and how to present it in court.
Can fault affect child custody in Texas?
Texas courts focus on the best interest of the child when making custody (conservatorship) decisions. Fault in the breakup of the marriage, by itself, usually does not determine custody. Courts can consider conduct that risks a child’s safety or affects a parent’s ability to care for the child. For example, a history of family violence, substance abuse, or other behavior that directly affects the child’s safety or well-being may influence custody and visitation decisions. In contrast, adultery that does not affect parenting or the child’s environment may have little or no impact on conservatorship.
What is the cost of an at fault divorce in Austin?
The cost of an at fault divorce varies based on case complexity. Uncontested divorces, where both parties agree on all issues, typically cost less than contested divorces that require extensive discovery and trial.
Factors affecting cost include the property type, property value, children, conflict level, and contested fault or other disputed issues. Because at-fault divorces often require additional investigation and evidence gathering, they can be more expensive than straightforward no-fault divorces. During a consultation, a lawyer at Smith & Bledsoe Family Law can discuss likely costs and fee structures for your situation.
How long does an at-fault divorce take in Texas?
Texas law requires a 60-day waiting period from filing to final decree, but most at-fault divorces take longer. Spouses can sometimes resolve uncontested divorces without major disputes in a few months.
Contested divorces, especially those involving fault allegations, significant property, or custody disputes, often take six months or more. The timeline depends on how quickly you and your spouse can exchange information, whether you can reach a settlement, and the court’s calendar. Your attorney can provide a more tailored estimate after learning about your case.
Contact Smith & Bledsoe Family Law for At Fault Divorce Representation
If you’re considering an at-fault divorce in Austin, it is important to get legal advice early in the process. The steps you take at the start of your case can affect how you preserve evidence and present claims.
Smith & Bledsoe Family Law represents clients in fault-based and no-fault divorces in Austin, Cedar Park, and nearby communities. You can call (512) 277-3166 or contact us online to schedule a consultation and discuss your situation with an attorney. During your consultation, you can ask questions, learn more about your options, and talk through possible next steps for your case. See our case results to learn how we’ve helped families in your situation.