In Texas a divorce may be granted for no reason other than the marriage relationship has become insupportable for the reason that there is discord or conflict, that it destroys the legitimate ends of the marriage, and there is no reasonable expectation of reconciliation. In fact, most divorces are filed and prosecuted as no fault divorces. The following is an excerpt of case law illustrating the manner the courts have interpreted this provision of the Texas Family Code.
In Cusack, the court stated: "[w]e concluded that it was the intent of the Legislature to make a decree of divorce mandatory when a party to the marriage alleges insupportability and the conditions of the statute are met, regardless of who is at fault." Cusack, 491 S.W.2d at 717 (emphasis added). This statement supports the conclusion that a petitioner's allegation of insupportabilty is not enough, they must also establish the other conditions of the statute are met, i.e., that there is discord or conflict, that it destroys the legitimate ends of the marriage, and that there is no reasonable expectation of reconciliation. The court also noted, "[t]he courts have no right or prerogative to add to or take from such a legislative enactment, or to construe it in such a way as to make it meaningless." Id. To remove any doubt as to the factual nature of those elements, the court concluded: "[a]s we view the [Family] Code, when insupportability is relied on as a ground for divorce by the complaining spouse, if that ground is established by the evidence, a divorce must be granted." Id. (emphasis added). See also Baxla v. Baxla, 522 S.W.2d 736, 739 (Tex.Civ.App.--Dallas 1975, no writ).
Even assuming, arguendo, that the trial court's statement that there is "no defense" to a petition for divorce on the ground of insupportability were a correct statement of the law, that would not relieve the petitioner of his duty to establish the statutory elements with adequate evidence. Any attempt to determine those factual issues without giving Teresa an opportunity to respond would violate due process. See Federal Sign v. Texas Southern University, 951 S.W.2d 401, 410 (Tex.1997). If Donald sought to avoid the burdens of trial, our rules provide for summary judgment motions. See Tex.R. Civ. P. 166a. His petition and affidavit cannot be deemed to be a motion for summary judgment. While the adoption of "no-fault" divorce dispenses with any burden to establish the source of the conflict rendering the marriage insupportable, it does not relieve the petitioner of the burden to establish the existence of the statutory elements.
The no fault divorce is one ground for divorce. If you are seeking a divorce that awards you a disproportionate share of the community estate than you may want to consider filing a fault based divorce. A fault based divorce is one of several fairness factors the court may consider when deciding whether to award a disproportionate share of the community estate. Clifford Swayze represents people in Williamson County as well as Round Rock, Cedar Park, Leander, and Georgetown for Divorce, Child Custody, and Property division issues.
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