No-Fault Divorce is often misunderstood. Many people think that since Texas has a no-fault statute, there is no issue of Fault in any divorce proceedings.
Some people think that no-fault Divorce means that it is instantaneous, or they equate no-fault with “simple.”
Here are five essential things to know about Texas No-Fault Divorce:
1. Fault can still be involved.
Section 6.001 of the Texas Family Code states that “the court may grant a divorce without regard to fault if the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.” It does not state that Fault cannot be alleged.
In fact, there are two other Statutes in the Family Code that discuss fault grounds that are often claimed: Cruelty (Section 6.002) and Adultery (Section 6.003).
Cruelty can be mental, physical, or both. And adultery can be acts that take place anytime after the marriage and before the Divorce is finalized.
No-fault Divorce means that there is no requirement to claim Fault. It does not mean that one or both parties cannot claim Fault.
2. No-Fault does not mean “Simple.”
Seeking a divorce on no-fault grounds has nothing to do with how complicated the Divorce may be. Even in a no-fault case, there may still be issues of division of retirement assets, division of real estate, payment of debts, contractual alimony, and spousal maintenance.
If there are children of the marriage, there will definitely be issues of conservatorship, residence of the children, possession schedules, child support, and health insurance.
A no-fault case may be extremely simple or very complicated. The issues of Fault often have little to do with the complexity of the case.
3. A No-fault Divorce is not necessarily faster.
In Texas, with rare exceptions, a court cannot grant a divorce until at least 60 days after the filing of the case. The clock starts ticking from the date the case is filed with the District or County Clerk, not from any other point.
Serving the other party, telling the other party, or signature on any document by the other party have nothing to do with the 60-day window.
But, the 60 days is a minimum. It is not a maximum.
More importantly, unless the parties have entered into an agreement or have a court date set, the 60th day comes and goes, and nothing happens. The court does not automatically take any action on the 60th day.
4. No-fault has nothing to do with representation.
Filing a case as no-fault has nothing to do with whether the parties are represented by lawyers. In Texas, neither party is required to have a lawyer. Each is free to represent themselves.
Also, there is no requirement that both parties have a lawyer. But it is absolutely against the rules for the same lawyer to represent both parties. Any lawyer in the case can only represent one party and is ethically bound to not give advice to both parties.
5. No-fault does not mean “uncontested.”
Even lawyers sometimes refer to certain divorces as “Agreed” or “Contested” or “Uncontested.” But the truth is, there is no such thing as an “uncontested” divorce in the sense that it is a separate category of Divorce.
Every Divorce is a lawsuit. Sometimes, it is an amicable lawsuit, where the parties get along from the beginning and throughout. And sometimes, the case devolves into a hotly contested trial.
In Texas, some divorces end in jury trials. Even no-fault cases can end up there.
A divorce, fault or no-fault, will impact the rest of your life. Making sure you understand the choices you have when going through a divorce can make all the difference in the world.