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Barbara L. Jouette, Attorney, P.C.
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Can courts consider fault in a divorce?

n most states, a couple can get divorced even if neither spouse is at fault. This is known as a no-fault divorce. All one spouse has to show is that there has been an irreparable breakdown of the marriage or that there are irreconcilable differences, and a court can grant the divorce. Texas law allows both no-fault and fault grounds for a divorce.

According to Texas law, there are seven grounds for a divorce. The first ground is known as insupportability, or no-fault divorce. Insupportability is defined in the statute as a marriage that can no longer supported due to some discord or conflict. There is also no reasonable expectation of reconciliation. Under this ground, neither spouse is required to present evidence that the other spouse is at fault in order to obtain the divorce. 

The remaining six grounds for divorce in Texas are fault-based grounds. These grounds include:

  • Cruelty
  • Adultery
  • A felony conviction
  • Abandonment
  • Living apart for at least three years
  • Confinement to a mental hospital

The spouse seeking a divorce must be able to prove that one of these situations occurred or that the other spouse committed one of these acts. In other words, the court can consider the fault of the other spouse when deciding whether to grant the divorce.  

Fault may also be considered in division of property. Texas courts follow a legal principle called community property. This means that all property acquired during a marriage is considered to be marital property, which is then divided equitably upon divorce. Typically, fault is not a factor that courts consider when dividing property. In some cases, however, courts may consider a spouse’s acts if they are relevant to reach a fair and equitable result.

The most common example is if one spouse committed a fraudulent act in connection to marital property. A court can then divide property in such a way as to make it equitable for the wronged spouse. For example, a court can award a disproportionate share of the marital estate or enter a judgment in favor of the spouse who was not to blame.


If you are going through a divorce, consider seeking the advice of an experienced family law attorney. Texas law can be complicated, and the attorney can answer any questions you have. 

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