grounds for divorce

divorce

The big day has arrived…the discussion about divorces. This is a huge topic, so I will have to divide it into sections. Today we will discuss the grounds for getting a divorce. This is a serious subject and can be a devastating stage in someone’s life. I have tried to add a little humor to the subject to make it an easier read. If you are in the middle of a divorce, or contemplating divorce and you do not think humor is appropriate, you can rest assured that I take each and every case that walks through my door deadly serious, and I play to win. Then again…a little humor never hurt anyone….

grounds for getting a divorce in Texas

There are basically 7 “grounds” for getting a divorce in Texas. Grounds are basically reasons to get a divorce. Back in the ancient days these used to matter more than they do now because now they have the no fault (insupportability) divorce. In the old days they did not have this and you had to have “grounds”.

insupportability

This is the most common reason for divorce. In my practice, I plead this in every divorce. You can plead other grounds (below) in addition to this one, but this one is most common. With this one you simply allege that the marriage has become insupportable because of discord and conflict, which destroys the legitimate ends of the marriage relationship and there is no reasonable expectation of reconciliation.

How is that for legal mumbo jumbo? This is the no contest divorce clause and translated means you and your spouse are not getting along and won’t be getting along ever again…SO GIVE ME A DIVORCE!

cruelty

You can get a divorce if your spouse is guilty of cruel treatment to the extent that further living together is not possible. LOL. Just about anybody reading this who is considering divorce probably feels like this applies to them. In my practice I sometimes allege this, but cannot say that I have ever used it as the grounds.

adultery

BAM! This is a big one. The definition is having sexual intercourse with one person while married to another. Two interesting little tidbits on this one…first, you will notice that it says “sexual intercourse”, so I guess all you bad little boys and girls out there (and I know you are out there considering some of the rumors I have been hearing about my readers) who are just doing the kissing thing or any other mouth activities are safe (wink wink). You are still guilty of being naughty.

The second interesting thing about the wording (or maybe it isn’t interesting) is that it says having intercourse with one “person” while married to another. So….any of my readers out there who may still be in the closet, this could apply to you.

As far as going to court over this ground, I have one thing to say…PROVE IT! I cannot tell you how many times this is raised in a divorce and about nine times out of ten there is no way to prove it. Even if you can prove your spouse is running around with another “person” that in and of itself is not proof of “sexual intercourse”. Get it? Good!

Many times people (lawyers) use this ground to attempt to get their client a bigger share of the divorce property pot.

conviction of a felony

You can get a divorce in Texas if your spouse has been convicted of a felony AND has been imprisoned for at least a year AND has not been pardoned. Pretty self explanatory. The funny part about this one is one last little item of the statute that says a divorce may not be granted under this section if the convicted spouse was convicted on the testimony of the other spouse!

Translated that says if your mean a#$ put me in here, guess what, you can’t divorce me! BOO YA! Kidding of course.

abandonment

You can get a divorce in Texas if your spouse hauled butt on you with the intention of abandoning you and has not returned for a year. Simple.

I get a lot of calls from people stating that there spouse just moved out and abandoned them…”I want to claim abandonment”. Well, we now know the requirements.

living apart

You can get a divorce on this ground if you and your spouse have lived apart without cohabitation (living together) for at least three years. Why not just use abandonment? What constitutes “abandonment” versus just separating and “living apart”? Enquiring minds want to know!

I don’t know the answer to these questions. I could find it, but quite honestly, why? Just get an “insupportable” divorce. Actually, there may be strategic reasons for using grounds other than “insupportability”, but not in your typical case.

confinement in mental hospital

If, at the time you file for divorce, your spouse is confined in a mental hospital, and has been for three years, and it looks like they are not getting any better, you can seek a divorce.

So there you go…7 grounds for getting divorced in Texas. Like I said earlier, almost all divorces that I have been involved with are granted on the grounds of insupportability. However, there are situations when alleging other grounds can be advantageous to your case.

To learn more about me, visit my new blog at www.theDallasDivorceBlog.com or www.PlanoDivorceBlog.com

Until next time….


The information contained in this blog is provided for informational (and sometimes entertainment) purposes only and should not be construed as legal advice on any subject matter. I can guarantee you that I am not covering every facet of the family code, and there may be hidden gems in the Family Code that could make or break your case based upon your specific fact situation. No recipients of content from this blog, retained client or otherwise, should act or refrain from acting on the basis of any content included in this blog without seeking the appropriate legal or other professional advice. ALL CASES ARE DIFFERENT BECAUSE OF THE FACTS PARTICULAR TO YOUR CASE; THEREFORE YOU NEED A LAWYER TO DISCUSS THOSE SPECIFIC FACTS. I expressly disclaim all liability in respect to actions taken or not taken based on any or all of the content of this blog. Talk to a lawyer first, preferably me, it is that simple!

annulment

Voidable Marriages - otherwise known as an Annulment

From the start, let’s differentiate this topic from my previous post. A void marriage is a marriage that never existed because of some impediment or problem with the marriage itself. A voidable marriage on the other hand is a valid marriage, but for a reason discussed below the State of Texas and the courts will let one of the married parties out of it.

Following are the grounds for an annulment in Texas.

Underage:

Under the age of 14 - Section 6.101 of the Family Code states that a marriage entered into by a person under the age of 14 can be challenged by an annulment proceeding anytime before that child reaches the age of 14. If the child is married before 14, but the lawsuit is filed after the child turns 14, the lawsuit is barred (cannot be filed) unless it is filed within the later of 1) 90 days after the person filing the annulment learned or should have learned of the marriage; or 2) 90 days after the date the child married turned 14. A suit cannot ever be filed if the child married before 14 years of age reaches the age of 18.

(It is important to note that a child cannot file a lawsuit, so any discussion of filing of lawsuits would be by the parent, guardian, etc… of the child. Another important note is that a court, in any under 14 marriage, can give permission if requested.)

So…if a child is married before the age of 14, everyone knows about it, and nothing is ever done, it seems that it is a valid marriage and only a divorce can dissolve it. That is creepy.

At least 14 but under 18 - Section 6.102 of the Family Code states that unless the court allows the marriage, or a parent consents, a suit to annul the marriage can be filed anytime by a parent or guardian before the child reaches 18 years of age.

At this age level, the court has discretion in whether they grant the annulment or not based upon the facts. In the scenario above (under 14) it is not discretionary and the court must grant the annulment.

Note that a parent can consent to this age level marriage.

Influence of Alcohol or Narcotics – Section 6.105 of the Family Code - This one is kind of obvious…if you are wasted when you get married, it can be annulled. To determine if this is the case, the Court looks to whether at the time of the marriage the person seeking the annulment was under the influence of alcohol or narcotics to the level that their consent to marriage is questionable and the person seeking the annulment did not live with the spouse since they sobered up.

Impotency – Section 6.106 of the Family Code - Ouch! I don’t even like to type that word! Bottom line guys, if you marry a girl when you are impotent and you don’t tell her, you could be getting an annulment. The only way this will not happen is if your wife continues to reside with you after learning of the impotency. Next topic!

Fraud, Duress, Force - Section 6.107 of the Family Code – To qualify for this one you must show that the other party used fraud, duress or force to get you to marry them and you did not live with them after you learned of the fraud or were released from the duress or force. In layman’s terms, if they trick you into getting married by lying or whatever, or they threaten you, you may be entitled to an annulment.

Mentally Incompetent - Section 6.108 of the Family Code – This one can be filed by a guardian on behalf of the incompetent person or by the mentally well person. If brought by someone on behalf of the mentally challenged person you must show that they did not have the mental ability to consent to the marriage and that they did not continue to live with the mentally competent person when they learned of the marriage.

A suit brought by the mentally competent party must show that they did not know the other person was mentally incompetent and that when they learned of the mental incompetency they ceased to live with the incompetent person.

Concealed Divorce - Section 6.109 of the Family Code – This one allows an annulment if you marry a person who was divorced from another person within 30 days of the marriage, you did not know this, and when you learned of it you did not continue to live with the person.

You can only use this provision within 1 year of the date of the marriage.

(Note: you will learn later that when you are divorced there is a thirty day waiting period before you can get remarried, unless the court waives the waiting period.)

Marriage within 72 hours of Licensing - Section 6.110 of the Family Code – You learned earlier in my blog (I think) that you have to get a license to get married in Texas (unless it is an informal marriage) and once you get that license you have to wait 72 hours, unless waived by the court. This section says that if you do not wait the 72 hours you can get an annulment.

You can only use this one for thirty days after the marriage.

A few final notes:

A marriage that was otherwise voidable for one of the reasons above disappears if one of the married parties dies;

There is no waiting period – you will learn later that a divorce cannot be finalized until 60 days after the petition for divorce is filed – that is not the case here.

You will notice that there is no provision for the duration of the marriage. I cannot tell you how many telephone calls I get asking if they can get an annulment because they have only been married for a month or a year or whatever. THERE IS NO ANNULMENT BECAUSE YOU HAVE BEEN MARRIED FOR ONLY A SHORT TIME. If you do not otherwise qualify under a provision above, it does not matter if you were married for one day…you must get a divorce.

The information contained in this blog is provided for informational (and sometimes entertainment) purposes only and should not be construed as legal advice on any subject matter. I can guarantee you that I am not covering every facet of the family code, and there may be hidden gems in the Family Code that could make or break your case based upon your specific fact situation. No recipients of content from this blog, retained client or otherwise, should act or refrain from acting on the basis of any content included in this blog without seeking the appropriate legal or other professional advice. ALL CASES ARE DIFFERENT BECAUSE OF THE FACTS PARTICULAR TO YOUR CASE; THEREFORE YOU NEED A LAWYER TO DISCUSS THOSE SPECIFIC FACTS. I expressly disclaim all liability in respect to actions taken or not taken based on any or all of the content of this blog. Talk to a lawyer first, preferably me, it is that simple!