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Do Grounds for Divorce Matter in a High-Asset Case?

Posted on in High Asset Divorce

Texas divorce attorney, Texas complex litigation attorney, irreconcilable differences,Texas is a no-fault state, and the vast majority of divorces are based on "insupportability," which is Texan for "irreconcilable differences." However, a spouse may still obtain a divorce based on adultery, cruelty, or some other evidence-based ground. An adverse ruling – or a favorable ruling, depending on your point of view – can have a significant impact on a future property settlement in a high-asset divorce.

Section 8 of the Family Code states that "marital misconduct" is a factor when determining the amount and duration of maintenance payments. The statute specifically mentions adultery and cruel treatment, but other types of fault may also be applicable. Meanwhile, Section 7 states that a spouse may be punished in the property settlement, if there is evidence of fraud on the community. Such fraud could include a husband who spends community funds to buy a present for his girlfriend or a wife who has part of her paycheck deposited into a separate account, without her husband's knowledge or consent.

Fault

According to Section 6, there are six evidence-based grounds for divorce. Each can be established by a preponderance of the evidence.

  • "Cruel treatment. . .that renders further living together insupportable;"
  • Adultery;
  • Felony conviction resulting in at least one years' incarceration;
  • Abandonment for at least one year;
  • Living apart for at least three years; or
  • Confinement in a mental institution for at least three years.

Most of these grounds are quite narrow. For example, "confinement" in a mental hospital implies involuntary commitment. Additionally, the filing spouse must prove that the nonfiling spouse either cannot adjust to a normal life after release or that a relapse is "probable."

Defenses

The Family Code expressly eliminates the common-law defense of recrimination – mutual infidelity – in adultery cases. Some permissible defenses include:

  • Condonation: The other spouse knew of the offending conduct (typically adultery), forgave the conduct, and renewed the marriage. Texas requires additional proof that there was a reasonable expectation of reconciliation.
  • Connivance: If the filing spouse participated in the adulterous or other misconduct, connivance is an absolute defense.
  • Provocation: One spouse entices the other to act in a certain way; for example, one spouse's cruel treatment may prompt the victim to abandon the marriage.

Collusion, another common-law defense, is not really applicable in no-fault states.

A declaration of fault can have a significant impact in your high net worth divorce. For a consultation with an aggressive Georgetown high asset divorce attorney, contact our office. We serve families in Travis, Williamson, and Hays Counties, as well as other parts of central Texas.

The Law Offices of William D. Powers

8911 N. Capital of Texas Highway, Building 2, Suite 2105, Austin, TX 78759