No-Fault Divorce vs. Fault-Based Divorce: Legal Considerations and Trends in Texas

Divorce, the legal end of a marriage, is a significant life event with various legal procedures to end the marital relationship. Like in many jurisdictions, in Texas, separating couples can pursue the end differently, each with legal considerations and implications.

The two primary divorce routes available in Texas are “no-fault” and “fault-based” divorces. While both ultimately end the marital union, their underlying grounds and legal procedures differ.

No-fault divorce allows couples to seek dissolution without blaming either party. On the other hand, fault-based divorce requires one spouse to prove the other’s mistake or marital misconduct as grounds for seeking divorce.

Understanding the differences between these two options is crucial for individuals considering divorce in Texas, as they can significantly impact the legal process, outcomes, and potential consequences. By reviewing both routes’ legal considerations and trends, individuals can make informed decisions that best suit their unique circumstances and goals.

No-Fault Divorce in Texas

No-fault divorce in Texas refers to the end of a marriage based on differences or the breakdown of the marital relationship without the need to assign blame or prove marital misconduct. Instead of alleging wrongdoing by one spouse, a petitioner can seek divorce simply by citing irreconcilable differences as the reason for the marital breakdown.

In Texas, there are two primary grounds for getting a no-fault divorce:

  • Insupportability: This ground allows for divorce when the marriage has become insupportable due to discord or conflict between the spouses, making reconciliation impossible. Spouses can petition for divorce based on “insupportability” without proving specific fault grounds. Alternatively, if the spouses have been living apart for at least three years, the court may grant a divorce based on the presumption of “insupportability.”
  • Living Apart: Under this ground, spouses can seek divorce if they have lived apart freely for at least six months with the intent to end the marriage. This ground recognizes that the spouses’ separation shows an irretrievable marital relationship breakdown, thus causing divorce.

No-fault divorce offers several benefits for couples seeking to end their marriage:

  • Faster and Potentially Less Expensive Process: No-fault divorces often proceed more quickly and with fewer legal problems than fault-based divorces, reducing the time and costs associated with litigation.
  • Reduced Focus on Negativity: No-fault divorce eliminates the need to assign blame or prove fault, reducing the potential hatred between spouses and encouraging a more friendly and agreeable divorce process.
  • Greater Autonomy in Division of Assets and Child Custody Arrangements: No-fault divorce allows couples to negotiate and agree upon the terms of their divorce settlement, including the division of marital assets, spousal support, and child custody arrangements, without being stopped by fault-based allegations.

Fault-Based Divorce in Texas

Fault-based divorce in Texas involves the end of a marriage based on specific grounds that prove spousal misconduct or mistake. Unlike no-fault divorce, which focuses on irreconcilable differences, fault-based divorce requires the petitioner to provide evidence of one of several specified grounds for divorce.

In Texas, there are four primary grounds for fault-based divorce:


This ground covers physical or mental abuse by one spouse upon the other, making living together intolerable or unsafe. Cruelty can be in various forms, including violence, threats, or emotional manipulation, and must be sufficiently severe to justify the end of the marriage.


Adultery occurs when one spouse engages in extramarital sexual relations outside the marriage, forming a breach of marital faithfulness. To prove adultery in a fault-based divorce, the petitioner must provide clear and convincing evidence showing the spouse’s infidelity, such as witness testimony, electronic communications, or surveillance evidence.


Abandonment occurs when one spouse deserts the other without consent and intends to end the marital relationship. To establish abandonment as grounds for divorce, the petitioner must demonstrate that the spouse has been absent for at least one year without justification or intent to reconcile.

Felony Conviction:

This applies when one spouse is arrested for a felony and imprisoned for at least two years. A felony conviction shows a serious breach of trust and moral obligation within the marriage, providing legal justification for divorce based on the offending spouse’s criminal conduct.

While fault-based divorce carries certain challenges and complexities, it also offers potential benefits for the petitioner:

  • Influence on Asset Division, Spousal Support, or Child Custody: In fault-based divorces, the court may consider one spouse’s misconduct when determining issues such as the division of marital property, allocation of spousal support (alimony), or awarding child custody. For example, adultery or cruelty may impact the court’s decision regarding financial support or custody arrangements.
  • Legal Justification for Ending the Marriage: Fault-based divorce provides a legal basis for ending the marital relationship, offering the petitioner a sense of validation or justification for seeking a divorce based on the other spouse’s offense or mistake.
  • Potential for Emotional Vindication or Closure: For some petitioners, fault-based divorce may offer a form of emotional closure or vindication by holding the offending spouse accountable for their actions and providing a legal remedy for the harm caused within the marriage.

While fault-based divorce provides an avenue for seeking a divorce based on spousal misconduct, it often involves greater complexity and ill feelings compared to no-fault divorce. Petitioners considering fault-based divorce should weigh the potential benefits against the challenges and legal requirements of proving fault grounds in court.

Comparing and Contrasting No-Fault and Fault-Based Divorce

FeatureNo-Fault Divorce Fault-Based Divorce    
Grounds for divorceIrreconcilable differences Specific misconduct
Blame assignedNo    Yes
Court involvementLow  Potentially higher 
Timeframe   Potentially fasterCan be longer due to evidence gathering
Cost    Potentially lowerCan be more expensive due to litigation
Emotional impact Potentially less acrimonious Can be more confrontational  

In summary, no-fault divorce is based on the concept of irreconcilable differences, allowing couples to dissolve their marriage without assigning blame to either party. It typically involves lower court involvement, potentially faster proceedings, lower costs and may lead to less acrimonious emotional experiences. On the other hand, fault-based divorce requires proving specific misconduct, such as cruelty, adultery, abandonment, or felony conviction, which can lead to higher court involvement, longer proceedings due to evidence gathering, increased costs due to litigation, and potentially more confrontational emotional experiences.

In Texas, the overwhelming popularity of no-fault divorce is a notable trend, with more than 90% of divorces opting for this pathway. Several factors contribute to this widespread preference, reflecting legal considerations and social attitudes toward divorce proceedings.

One significant reason for the popularity of no-fault divorce is its comparatively easier proof requirements than fault-based grounds. No-fault divorce in Texas allows couples to cite irreconcilable differences or live apart for a certain period, eliminating the need to provide evidence of specific mistakes, such as cruelty, adultery, abandonment, or felony conviction. This simplified evidentiary standard simplifies divorce, making it more accessible and less hostile.

Additionally, Texas’s no-fault divorce process promotes quicker resolution than fault-based divorce. By removing the need for protracted litigation to prove fault, couples can often complete their divorce more efficiently, saving time and resources. This expedited process aligns with the desire for swift closure and transition to post-marital life for divorcing spouses.

Furthermore, the popularity of no-fault divorce reflects a social shift away from assigning blame and negativity in divorce proceedings. By focusing on irreconcilable differences rather than specific misconduct, couples can approach divorce with less animosity and hostility, fostering a more amicable and cooperative environment for resolving issues related to asset division, child custody, and support.

Recent legal developments or case rulings impacting no-fault vs. fault-based divorce in Texas. While specific cases may influence procedural aspects or interpretations of divorce laws, the fundamental preference for no-fault divorce remains largely unchanged. Courts continue to uphold the principles of no-fault divorce as a foundational aspect of family law in Texas, reflecting the state’s commitment to facilitating accessible and equitable dissolution of marriages while prioritizing the well-being of all parties involved.