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fault grounds

Most states allow spouses seeking a divorce to allege fault in the breakup of the marriage as a basis for the divorce. Alleging the other spouse’s fault—rather than seeking the divorce on no-fault grounds (irreconcilable differences or incompatibility, making the marriage unsustainable)—is generally a basis for requesting the court make an uneven distribution of the marital or community property in favor of the spouse alleging the other’s spouse’s fault.

In states that allow a spouse to seek a divorce on fault grounds, the grounds that may be alleged vary from state to state, but generally include adultery, cruelty, conviction of a felony, family or domestic violence, abandonment, mental illness, and substance abuse (drugs and alcohol). Spouses may also seek a divorce on no-fault grounds in these states.

In no-fault states, a spouse is not allowed to allege fault as grounds for the divorce, and the court is not allowed to consider fault in dividing the marital or community property—but allegations of fault may be considered for other purposes, such as spousal support and child custody. No-fault states include California, Colorado, Florida, Hawaii, Indiana, Iowa, Kansas, Kentucky, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, Oregon, Washington, and Wisconsin. And in some states “incurable insanity” is a no-fault ground for divorce.

The grounds on which a spouse may seek a divorce (fault or no-fault) are usually located in a state’s statutes—often in the family code or domestic relations code.

In Texas, spouses seeking a divorce can file on either fault or no-fault grounds. No-fault divorce is based on 'insupportability,' which means that the marriage has become insupportable due to discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation. Fault grounds for divorce in Texas include cruelty, adultery, conviction of a felony, abandonment, living apart for at least three years, and confinement in a mental hospital. When a spouse files for divorce on fault grounds and proves the other spouse's fault in the breakup of the marriage, it can influence the court's decision on the division of marital property. Texas courts may award a disproportionate share of the community property to the spouse not at fault. Additionally, while Texas is not a strict no-fault state, fault can also play a role in determinations of spousal support and child custody.

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