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 have the option to file on either fault or no-fault grounds. No-fault divorce is based on 'insupportability,' which means that the marriage has become unsustainable due to discord or conflict of personalities that destroys the legitimate ends of the marital relationship with no expectation of reconciliation. On the other hand, fault grounds for divorce in Texas include adultery, cruelty, felony conviction and imprisonment for over one year, abandonment for at least one year, living apart for at least three years, confinement in a mental hospital for at least three years with little or no prospect of recovery, or family violence. When a spouse alleges fault in the breakup of the marriage, Texas courts may consider this when dividing the marital property. The court may award a disproportionate share of the community property to the spouse not at fault. Additionally, fault may also be relevant in determining spousal support and child custody arrangements. The specific statutes outlining the grounds for divorce in Texas can be found in the Texas Family Code.
