It used to be the case where a person would only be able to file for divorce if he or she were able to prove fault in the breakup of the marriage. What is known as fault grounds had to be specified by someone interested in getting a divorce. Without specifying fault grounds for divorce a judge would not legally be able to grant your divorce. Among other reasons, this was a particularly important reason as to why divorce cases were much less common years ago than they are today. As such, fewer people got divorced and law practices that focused on family law were also less common.
Fast forward to today and you likely knew this wasn’t the case without having to read this blog post. Long since gone are the requirements that you must specify a particular default ground for a divorce to have your case granted by a judge. Rather, no-fault divorces began to become more commonplace in the 1960s and every state in the US has adopted no-fault divorces throughout the past few generations. Not coincidentally I believe, divorce rates have increased dramatically and most everyone moving in this country knows a handful of people have gotten divorced.
However, that does not mean that fault grounds do not play a role in divorces to this day. Quite on the contrary, fault grounds can play a significant role when it comes to different areas of a divorce case. Specifically, fault grounds can play a notable role in how child custody is determined if you have children and also in how Community property is divided between spouses.
While most Texas divorces do not specify fault grounds leading up to the beginning of a case, I believe it is important for you to be aware of what it means to file for and obtain a divorce based on false grounds. Specifically, I would like to talk about what consequences certain fault grounds can have in determining the outcome of a divorce case from the perspective of Community property division and child custody.
In today’s blog post from the Law Office of Bryan Fagan, I would like to share with you my thoughts on the subject of fault grounds poor divorce and their potential impact on a case. While no two divorces are exactly alike I can tell you that certain conditions are oftentimes in play when it comes to alleging fault grounds and then ultimately proving fault grounds. We are going to walk through what it means to alleged particular fault ground in a petition for divorce as well as the kind of impact a fault ground can have when it comes to child custody and Community property division matters.
What is a fault ground for divorce and what are some examples?
This seems like as good a place as any to begin our discussion. When it comes to getting it divorce you have options when it comes to alleging the reasons why you and your spouse ended up where you are now on the precipice of no longer being married. Common fault grounds for divorce include adultery, abandonment, impotence, wasting of community assets, and allegations of domestic violence. These are a few of the many fall grounds for divorce. You can walk through different blog posts on the website for the law office of Brian Fagan to learn the rest. An all-encompassing list is included online for the Texas family code.
When you allege a fault ground for divorce in your original petition you are saying that your divorce became necessary to do to this particular fault ground. Probably the most common fault ground for divorce is adultery. When you allege that your divorce was necessary due to adultery a certain degree of expectation comes with this type of allegation. From having worked with people for many years in divorce cases I can tell you that the expectation is that alleging adultery means that you will get whatever you want in the divorce that you are asking for.
The question that we need to examine in today’s blog post is whether or not this is true. I think movies and television shows have led us to believe that alleging false grounds based on adultery in a divorce is sort of a silver bullet or magic word in terms of actually accomplishing your goals in a case. For example, I’ve had many more than one person walk into our office for a free of charge consultation to tell me that because their spouse cheated on him or her that this person believes sole custody of the children, as well as most if not all of the Community property being awarded to him or her, is what will result from the divorce case.
Based on this, I have I’ve been led to believe that people, in general, have a tremendous belief that adultery under the worst offenses can be outlined in an original divorce petition. Even the evidence that needs to be presented to substantiate this type of allegation need not be considered. Simply telling a family court judge that you were cheated on is enough to tip the scales of justice in your favor and put you in a position where you can be awarded whatever you ask for in your petition for divorce. However, we need to ask ourselves the question of whether or not this is true.
Adultery is taken seriously by family court judges. The same can be said for any fault ground alleged in an original divorce petition. Of course, it is incumbent upon you as the petitioner or counter petitioner to prove that adultery did occur and did lead to the filing of a divorce. If and when you can successfully prove these things the next question you need to ask yourself is what impact will adultery or any other fault ground have on your case.
There is a difference between a courtroom and a court of public opinion
You may have been very upfront with friends and family about the issues that have led to your filing for divorce. It takes a great deal of fortitude to walk away from marriage even if there are warning signs that your marriage is failing. However, those same issues that led to your divorce may not be viewed in the same light by a family court judge that you and your friends and family view them as. Let’s again take up the example of adultery to see how a judge’s view of this fault ground may be different than your own.
Suppose that you allege in your original petition for divorce that you are filing for divorce because your spouse cheated on you. The reality of the situation is that not all infidelity is created equally. By this, I do not mean that infidelity in your family may not be hurtful or have violated all the trust in your marital relationship. What I do mean is that even if you were badly hurt by the infidelity and adultery that does not mean that it will necessarily have the impact on your divorce that you may be anticipating.
For example, let’s suppose that the adultery that you are alleging in your original petition for divorce occurred a minimal number of times many years ago. He found out about the adultery but you and your spouse attended counseling and stayed married for years after the adultery came to light. What this may tell the judge is that the nature of the adultery in your situation was not as severe or significant as it could have been at the adultery went ongoing or had other circumstances surrounding it. As a result, I do not believe that a judge would agree with your assessment that adultery was a direct cause of your divorce.
On the other hand, let’s suppose that adultery was a behavior engaged in over many years and impacted many other areas of your family. For example, if the adultery took place over a long enough period it could have been that your spouse ended up spending money on their paramour on things like weekend trips, presence, meals, or simply on things like hotel stays. Additionally, your children may have even been exposed to what she did to a point where they knew it was going on.
This is a much different scenario than a one or two-time incident. Not only were your children negatively impacted by the extramarital affair but there was also wasting of community assets in that your spouse spent money on this other person on an ongoing basis. This is extremely troublesome not only on an emotional level but on a financial level as well.
What can a substantiated fault ground for divorce mean for your case?
For starters, when you allege a fault ground for divorce they can have a significant impact on your case. Nice examine those potential impacts as we finish off today’s blog post. When it comes to the division of your marital property it is important to note that in a typical Texas divorce you can expect the property to be divided nearly right down the middle. This is based on the presumption that all property owned by you and your spouse at the time of your divorce is Community property. This means that not only must the property be divided in your divorce but that because it was likely accumulated during your marriage it should be divided up in a fairly equitable fashion.
There are several reasons why your Community property may be divided up disproportionately, meaning to say that the property may end up being awarded in a greater than 50% share to either you or your spouse. One of those circumstances that could lead to a disproportionate award of the Community property is by proving a fault ground that led to the end of the new marriage. Based on principles of equity and fairness your family court judge could determine that because your spouse cheated on you that you deserve the greater share of the property than had the cheating not occurred.
This is especially true if the cheating involved wasting your Community’s property. In a circumstance like this, your spouse may not only be awarded less than 50% of the Community property as a whole but may be ordered to reimburse the community estate out of their separate property for any money spent on their Paramore. If you can obtain a record or proof of how much money was spent on this person over time and you strengthen your case and put yourself in a position to have your community estate reimbursed.
Consider that Community property division can be an extremely complicated and complex subject especially if you all have a large community state. For that reason, any additional circumstance can be used by you or your spouse to your respective advantages. A circumstance involving infidelity and the wasting of community assets is a very strong path towards having the division of Community property impacted. I will say that this is certainly a stronger position for you to be in than had the infidelity occurred on one or two occasions with no impact on the Community property owned by you and your spouse.
While no instance of infidelity or adultery can be completely disregarded family court judges typically view infidelity cases on a case by case basis. This means that you should not assume or presume that because you were cheated on by her spouse that you will automatically be awarded a disproportionate share of the Community property or would simply have all the debts in your community estate awarded to your spouse. You should work with your attorney to get a better idea about the nature of infidelity in your life before you proceed in your divorce case.
Grounds for divorce regarding child custody
Finally, I wanted to say a word about how particular pool grounds for divorce can impact how child custody issues are decided in your divorce case. Let’s assume that your spouse is an addict to drugs and alcohol in that you allege fault grounds based on these circumstances in your original petition for divorce. Furthermore, you can successfully prove that these conditions have and would likely continue to hurt your children. The question we need to ask ourselves then is to what extent fault grounds like these would have an impact on the child custody determination for your family.
For starters, child custody is shoes are not always about visitation time and things of that nature. Rather, child custody issues cut to the core of what is in the best interest of your child and what is in the best interest of the safety of your child. A circumstance involving your spouse where he or she is unable to show that they are capable of keeping your child safe while in possession of your kids is not a strong place to start from as far as negotiations are concerned over child custody. Rather, you need to be aware that when it comes to child custody both you and your spouse will be graded against each other.
So, if there is no evidence that you are a threat to the safety and well being of a child and there is a simultaneous concern that you’re spouse is that puts you in a strong position in terms of being able to negotiate for superior conservatorships rights and more time with your children as far as possession is concerned. Alleging and proving fault grounds for divorce can mean that your spouse is awarded less visitation time with the children than you are and that he or she may even need to have supervised visitation. I see supervised visitation as being a more likely outcome for parents who have addictions to drugs or alcohol. Additionally, parents have a history of domestic violence also R assessed supervised visitation at least initially after her divorce.
Finally, being able to make decisions for yourself that is wise is important to be able to have the right to make decisions for your children. If your spouse cannot make good decisions as far as keeping himself or the kids safe from exposure to drugs or alcohol then it is very likely that he or she would have minimal rights to make decisions for your children regarding medical or educational decisions. This is a somewhat underreported but very significant way that fault grounds for divorce can impact child custody determination’s in a case. No matter what side of a fault grounds case you are on having an experienced family law attorney to guide you through the process is extremely important.
Questions about the material contained in today’s blog post? Contact Law Office of Bryan Fagan
if you have any questions about the material contained in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultation six days a week In person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family circumstances may be impacted by the filing of a divorce or child custody case.