Filing for Divorce: An Overview of “At-Fault” Divorce

According to an article published by The Huffington Post, the rate of divorce in the United States has been steadily declining since the 1980s. However, this doesn’t mean that divorce rates are at an all-time-low. A young couple getting married for the first time has a 40% divorce risk. In Texas, a spouse deciding to file for divorce can choose to file due to irreconcilable differences, or “incompatibility”, or claim that the other spouse was at fault for the end of their marriage. Unlike a “no-fault” divorce, where either spouse can file under the grounds of having an insupportable marriage, an “at-fault” divorce allows a spouse to file under specific grounds.

Are you considering filing for divorce? Let our McAllen divorce lawyers analyze your case and give you advice.


There are six fault-based grounds in the Texas Family Code under which a spouse may choose to file for divorce. Each of these grounds requires detailed evidence to be provided to the court:

  • Cruelty – A spouse has caused physical or mental harm to the other.
  • Adultery – A spouse has been unfaithful.
  • Conviction of Felony – A spouse has been convicted of a felony and has been imprisoned for at least one year without pardon.
  • Abandonment – A spouse left the other with the intent of abandonment and has been away for at least one year.
  • Living Apart – Spouses have not lived together for at least three years.
  • Confinement in Mental Hospital – A spouse has been confined in a private or state mental hospital for at least three years and the degree of their mental disorder has made readjustment highly unlikely. 


A spouse may choose to defend a divorce petition if they do not want to lose a court battle or don’t want the marriage to end and need time to make things right. Regardless of the reason for defending the claim, there are only certain defenses that can be used in each state. In Texas, defenses that can be used against divorce claims are few. However, the spouse on the receiving end of the divorce petition has the option to defend the claim based on a few exceptions.

Texas Family Code Section 6.008 states, “(a) The defenses to a suit for divorce of recrimination and adultery are abolished. (b) Condonation is a defense to a suit for divorce only if the court finds that there is a reasonable expectation of reconciliation.” Recrimination being done away with as a defense means that the party being accused of adultery, for example, cannot defend the claim by accusing the spouse of the same thing.

Condonation occurs when a spouse forgives or accepts the wrongful behaviors of the other spouse. For example, if a spouse filed for divorce under the ground of adultery, yet forgave and accepted the behavior, and the other spouse can prove it, this qualifies as a condonation defense. However, the court may only accept this if there is a high chance for reconciliation.

Pros and Cons

Filing for an at-fault divorce can work in the favor of the filing spouse. For example, if the court sides with the filing spouse and the proper evidence has been provided to prove the ground, alimony or property division can ultimately benefit the filing spouse.

At-fault divorces can be more stressful and expensive compared to no-fault claims. Proving a fault-based claim can require more time and money. For example, proving infidelity may require additional private investigator’s fees and court costs.

We Can Help You

McAllen’s divorce attorneys at Barrera, Sanchez & Associates P.C. understand the complexities of filing for a divorce and are here to help you. Contact us today so that we may begin your case and discuss the grounds you may be able to use for your divorce.

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