A fault divorce in Texas is one where you ask the court to end the marriage by blaming your spouse for specific misconduct rather than filing under the standard no-fault ground of insupportability.1State of Texas. Texas Code FAM 6.001 – Insupportability The payoff for proving fault can be significant: a larger share of the marital estate, a stronger claim to spousal maintenance, and in some cases a real effect on custody. The tradeoff is that you have to produce evidence, and the case takes longer.
The Six Grounds You Can File On
Texas recognizes six fault-based grounds, and each has its own factual threshold. Judges won’t grant a fault divorce on vague allegations, so knowing what the statute actually requires matters before you decide which ground to plead.
Cruelty. Your spouse treated you cruelly enough that continuing to live together became insupportable. This covers physical abuse, emotional abuse, or a pattern of conduct severe enough that no reasonable person would be expected to stay.2State of Texas. Texas Code FAM 6.002 – Cruelty
Adultery. Your spouse had a sexual relationship outside the marriage. You don’t have to catch them in the act. Circumstantial evidence showing both opportunity and inclination is generally enough.3State of Texas. Texas Family Code Chapter 6 – Suit for Dissolution of Marriage
Felony conviction. Your spouse was convicted of a felony, imprisoned for at least a year in the Texas Department of Criminal Justice, a federal penitentiary, or another state’s prison, and has not been pardoned. One important restriction: the court cannot grant a divorce on this ground if the conviction relied on your testimony.4State of Texas. Texas Code FAM 6.004 – Conviction of Felony
Abandonment. Your spouse left with the intent to abandon you and stayed away for at least one continuous year.5State of Texas. Texas Code FAM 6.005 – Abandonment
Living apart. The two of you have lived separately without cohabitation for at least three years. Either spouse can file on this ground.6State of Texas. Texas Code FAM 6.006 – Living Apart
Confinement in a mental hospital. Your spouse has been confined in a state or private mental hospital for at least three years, and the condition is severe enough that recovery is unlikely or relapse is probable.3State of Texas. Texas Family Code Chapter 6 – Suit for Dissolution of Marriage
Cruelty and adultery are the grounds most commonly alleged because they most directly affect the financial outcome. The other four come up less often, largely because their factual requirements (imprisonment, long separation, long hospital confinement) narrow when they apply.
How Fault Changes Property Division
Texas is a community property state. Most assets acquired during the marriage belong equally to both spouses, and the court must divide the estate in a way that is “just and right” considering each party’s circumstances and any children.7State of Texas. Texas Code FAM 7.001 – General Rule of Property Division In a no-fault case, that usually lands somewhere close to 50/50.
Proving fault changes the math. Judges have broad discretion to award a larger share to the spouse who wasn’t at fault. In practice, documented adultery or cruelty often results in the innocent spouse receiving roughly 55% to 60% of community assets, and more extreme facts can push the split further. How far depends on how severe the misconduct was, how long it lasted, and whether it caused direct financial harm to the community estate.
Waste of Community Assets
Fault becomes especially powerful when the offending spouse spent community money on the misconduct itself. Money spent on an affair, gambled away, or moved out of joint accounts before filing can all count as waste. A judge can effectively add wasted funds back to the community pot before dividing it, so the offending spouse’s share shrinks to account for what they already took.
Making a waste claim stick requires documentation. Credit card statements, bank transfers, receipts, and financial records showing community money leaving where it shouldn’t have. Vague accusations without a paper trail rarely move the needle, and the burden falls on you to prove both that the spending happened and what it was worth.
How Fault Improves a Maintenance Claim
Spousal maintenance is harder to get in Texas than in many states, and proving fault improves the odds in two distinct ways. A court can order maintenance only when the requesting spouse lacks enough property (including separate property) to cover minimum reasonable needs and meets at least one additional qualifying condition.8State of Texas. Texas Code FAM 8.051 – Eligibility for Maintenance
One of those qualifying conditions is tied directly to fault. If your spouse was convicted of or received deferred adjudication for a family violence offense committed during the marriage, you become eligible for maintenance regardless of how long the marriage lasted.8State of Texas. Texas Code FAM 8.051 – Eligibility for Maintenance Without that trigger, the marriage generally needs to have lasted at least ten years for you to qualify based on inability to earn enough income.
Once you’re eligible, the court weighs a list of factors to set the amount and duration, and marital misconduct (including adultery and cruel treatment by either spouse) is an explicit statutory factor.9State of Texas. Texas Code FAM 8.052 – Factors in Determining Maintenance Fault can push both the monthly amount and the length of payments toward the statutory ceilings.
Those ceilings cap maintenance at the lesser of $5,000 per month or 20% of the paying spouse’s average monthly gross income.10State of Texas. Texas Code FAM 8.055 – Amount of Maintenance Duration is capped based on how long the marriage lasted: up to five years for marriages of 10 to 20 years, seven years for marriages of 20 to 30 years, and ten years for marriages of 30 years or more.11State of Texas. Texas Code FAM 8.054 – Duration of Maintenance Order Where family violence established eligibility for a shorter marriage, the duration cap is five years.
When Fault Actually Affects Custody
Adultery by itself rarely changes custody outcomes. Texas courts decide custody based on the child’s best interest, and an affair that didn’t touch the children usually won’t shift the analysis. Cruelty is different. When the fault ground involves family violence, the court must consider that history in deciding whether to restrict a parent’s access to the children.12State of Texas. Texas Family Code Chapter 153 – Conservatorship, Possession, and Access
A history of family violence can override the usual presumption that both parents should be named joint managing conservators. The court may limit the violent parent to supervised visitation, restrict overnight possession, or impose conditions designed to protect the child. If you’re filing on cruelty grounds that involved violence toward you or your children, the custody consequences alone can be more important than the property or maintenance effects.
Defenses Your Spouse Can Raise
The spouse accused of fault isn’t defenseless. Texas recognizes several defenses that can neutralize fault allegations and effectively push the case back into a no-fault framework.
Condonation. If you knew about the misconduct and chose to continue the marriage anyway, the court may treat that as forgiveness. Resuming the marital relationship after learning about an affair is the most common example. Condonation can be undone: if the forgiven spouse commits the same misconduct again, the earlier acts are revived as grounds.
Recrimination. If both spouses engaged in the same type of misconduct (for example, both committed adultery), neither may be able to use it as a fault ground against the other.
Connivance. If you consented to or facilitated the misconduct before it happened, the court can deny the fault claim. This is rare but comes up when one spouse essentially set a trap.
These defenses work best when raised early. If you’re responding to a fault-based petition, document anything that supports condonation or mutual misconduct before the case reaches trial.
What Evidence You Actually Need
The spouse alleging fault carries the burden of proof, and judges expect concrete evidence, not accusations. What counts as strong evidence depends on the ground.
For adultery, financial records are often the most persuasive: credit card statements showing hotel stays, gifts, or dinners the other spouse can’t explain. Text messages, emails, and social media communications can establish the relationship. Phone records showing repeated contact with a specific person add circumstantial weight. You don’t have to prove the sexual relationship directly if the evidence shows both opportunity and a romantic connection.
For cruelty, police reports and medical records documenting injuries carry the most weight. Protective orders and 911 call records create an official timeline. Witness testimony from people who directly observed the abusive conduct also helps, particularly when it lines up with the documented record.
Don’t Break the Law Gathering Evidence
A common and costly mistake is collecting digital evidence illegally. Federal law prohibits intercepting electronic communications without authorization, and evidence obtained by hacking into a spouse’s phone, email, or computer without permission can be ruled inadmissible. The urge to read a spouse’s private messages is understandable; doing it the wrong way can sink your case.
The legal path runs through discovery. Your attorney can subpoena text messages, emails, and social media records from the service provider, or compel production from the other spouse. Messages sent directly to you (texts on your phone, emails to your account) are generally fair game because you were an intended recipient. The problem is accessing accounts or devices that belong to the other person without their knowledge.
Filing and Timeline
Before you can file, you have to meet the residency requirement. Either you or your spouse must have lived in Texas for at least six months and in the county where you’re filing for at least 90 days.13State of Texas. Texas Code FAM 6.301 – General Residency Rule for Divorce Suit
The case starts with an Original Petition for Divorce filed with the district clerk in the appropriate county. The petition must state the specific fault ground you’re pursuing and include factual allegations supporting it. Filing fees vary by county. Petition forms with instructions are available through the TexasLawHelp.org portal, though fault-based cases are complex enough that most people benefit from having an attorney draft the petition.14Texas State Law Library. Divorce – Legal Forms
After filing, the other spouse must be formally served, usually by a private process server or a county constable. Texas then imposes a mandatory 60-day waiting period before a judge can sign the final decree. There is one exception: the waiting period does not apply if the respondent has been convicted of or received deferred adjudication for a family violence offense against the petitioner, or if the petitioner holds an active protective order against the respondent based on family violence during the marriage.15State of Texas. Texas Code FAM 6.702 – Waiting Period A contested fault case that goes to trial typically takes several months longer than a no-fault divorce because of the added evidence gathering and hearings.