Every divorce filed in Texas has to state grounds for the divorce, but should it be a fault ground or the standard no-fault option? In this episode, Holly Draper is joined by her partner at the Draper Law Firm, Carrie Tapia, to break down the grounds for divorce available under the Texas Family Code and the strategy behind choosing which one to plead.

Holly and Carrie start with the default: insupportability, the no-fault ground that allows most Texas divorces to proceed without airing out every grievance in the marriage. The conversation then works through each of the fault grounds available in Texas along with the evidentiary bar for each, the practical reasons attorneys rarely plead some of them, and the property division and custody consequences that can follow.

Holly and Carrie share candid war stories about how judges really react to adultery, when a disproportionate share of the estate becomes realistic, and the hidden risks (like exposure to lifetime spousal maintenance or the need for a guardian) that come with rarely-used grounds, as well as practical guidance for practitioners: when and how to amend a petition to add fault grounds before trial, why waiting until the last minute can backfire under the Texas Rules of Civil Procedure, and how to counsel clients on the risk versus reward of pursuing a fault-based case.

In this episode you’ll discover:

• Why insupportability is the default
• How fault grounds can function as leverage
• What it actually takes to prove fault grounds
• The truth about adultery in the eyes of the court
• The unique circumstances for lesser-used fault grounds
• Timing rules for amending a petition

Mentioned in this episode:

• Texas Family Law
• Podcast
• Grounds
• Insupportability
• No-Fault
• Fault Grounds
• Cruelty
• Adultery
• Felony Conviction
• Abandonment
• Confinement to a Mental Hospital
• Disproportionate Division
• Family Violence Finding
• Amending Pleadings

Transcript

Episode 143 | To Plead or Not to Plead: Grounds for Divorce-Texas Family Law Insiders Podcast

Carrie Tapia: In law school, Professor Joe Spurlock said, “Don’t have a next until you have an ex.” That’s what he taught us in family law classes. I’ve used that line with my clients.

Announcer: You’re listening to the Texas Family Law Insiders Podcast, your source for the latest news and trends in family law in the state of Texas.

Now, here’s your host, attorney Holly Draper

Holly Draper: Hello, everyone, and welcome back to the Texas Family Law Insiders podcast. Today, I’m joined by my partner at the Draper Law Firm, Carrie Tapia, and we’re going to be chatting about something that I don’t think we’ve really ever covered in this podcast in our first five years, so hopefully it will get you some new content, and that is the different grounds for divorce that we have in Texas.

And so this is literally an issue in every single divorce case. Now, should it actually be an issue is another question, but we’re going to kind of go through all of them today and you can decide for yourself. So thanks for hopping on with me today, Carrie.

Carrie Tapia: Yeah. Thanks for having me back.

Holly Draper: I thought it was interesting when I sent Carrie this outline for today, her response was 100% the way that I also feel about fault grounds for divorce…basically, that fault grounds generally are stupid, and people should not be pleading them right out of the gates, and they cause more problems than they can actually solve. But let’s dive in a little bit on that.

Let’s start with talking about the no-fault grounds. So, everybody should know Texas is a no-fault divorce state where we grant divorces on the grounds of insupportability, and that is what most divorces in Texas are granted under, and as a general rule, that is what we file under.

Can you talk about why that would be the default when filing for divorce?

Carrie Tapia: Because it’s the only way to have a truly uncontested divorce, and a lot of people want an uncontested divorce. Even if there are other grounds that could perhaps be met, if you plead for those in your original petition, you have basically given up the chance of having a clean divorce where you can have a better chance at co-parenting down the road if you have children, because then you have to air all your dirty laundry.

So, my thought has always been that we should hold that card, keep that in our back pocket, and just plead insupportability at first most of the time. There are those cases, where we’ll get to those, where, you know, there’s a good reason to go ahead and plead that fault ground at the very beginning. But I would say 99% of the time probably to just go ahead and plead the insupportability.

The marriage is insupportable because of a discord or conflict that destroys the legitimate ends of the marriage relationship with no resolvable grounds of reconciliation. And I just think that that makes it better for people in the long run if they’re able to just get the divorce done without going through all the fault grounds.

Holly Draper: Any family lawyer probably has experienced this, but you get the clients that come in, and they are really angry, and they are hurt because they were cheated on, or their spouse has treated them like garbage or been physically abusive, emotionally abusive, whatever the case may be. And I think it’s super important for attorneys to have a conversation with the client right out of the gates about why we might not plead those fault grounds to begin with.

Carrie Tapia: Right.

Holly Draper: In my experience, fault grounds, be it adultery, cruelty, something else, usually carry more weight in terms of negotiating than actually in a courtroom. I like to use the analogy with clients of, like, okay, yes, you have fault grounds for adultery. Yes, he cheated on you a bunch. But we’re going to have that card in our hand, and we are not going to play it in the original petition.

We’re going to hold that, and we’re going to see if we can reach the type of deals that we think need to get reached. And if we can’t, then we might start to show that card, and we might use it either at mediation or before and say, you know, “Hey, you don’t want to play ball in this the right way, let’s talk about deposing your paramour,” or something like that, where you start to flash those cards, let them know what you have, and threaten that we’re going to go down the fault grounds path.

And a lot of times, that can lead to a better settlement, because the other side doesn’t want you to depose the paramour. The other side doesn’t want to get on the stand and testify about these horrible things that they have done, and therefore, they negotiate more favorably Now, kind of on the flip side of that, when we are not representing the petitioner, we’ll have a client that comes in and hires us, and they give us the petition that the other side has filed.

And depending on the lawyer, sometimes it is super aggressive. It throws in all default grounds. What do you tell to clients when that happens?

Carrie Tapia: I usually say, “Okay, well, they went ahead and opened the can of worms, so we can do that, too.” And then it just depends on what the facts that the other side has to back it up.

Sometimes I might say, “Well, let’s just file an answer, and let me talk to opposing counsel and see if this is really what they’re trying to do, or if this was just, you know, we all know those lawyers, that they just do that, and see what we’re actually dealing with with this case.” But generally, I’m a little tit for tat if someone’s going to file all default grounds and they’re not going to try to taper it down.

Okay, I guess that’s, that’s who you chose to bring to this dance, and so that’s who we have to dance with.

Holly Draper: A lot of times I’ll tell clients, you know, don’t read too much into what is in that petition- Mm-hmm … because a lot of times it says more about the lawyer than it says about the other side, and a lot of those lawyers we recognize, you know?

Yes. We see a certain lawyer filed it, we are not surprised to see them throw everything in the kitchen sink into the petition, and sometimes we can talk them off of that ledge. It’s a lot harder to do that and get us to an amicable place when it starts out that way, because, you know, we see the reaction that our clients have.

We see what that does to the whole approach of where is this going to go. But I would, you know, say, “Let’s see if we can, let’s see if we can deescalate things a little bit. Maybe we can, maybe we can’t. If we can’t, then absolutely, we are going to go throw everything that we have at them, too, and we’re going to have most likely a fight on our hands.”

But so there’s also one other no-fault ground which would be living apart without cohabitation for three years. I’ve been doing family law for a while. I don’t know that I’ve ever actually seen that pled. I don’t know that there’s a real reason to plead it if you’ve got the insupportability grounds.

What do you think?

Carrie Tapia: I’ve pled it once, and there was a good reason at the time that I don’t remember right now. But I agree for the most part, if it’s no-fault, then it’s no-fault. You don’t need to do that. And it’s generally not in someone’s best interest to wait for three years to file

Holly Draper: Oh, yeah

Carrie Tapia: … you know, from living apart. So hopefully people don’t wait that long thinking they need to hit that ground.

Holly Draper: Right. And kind of an example that comes to mind of when this might be pled would be when people have been living apart, they don’t even know where the other person is.

Carrie Tapia: Right.

Holly Draper: And that sort of gives some explanation of, “We split up years ago. I don’t know what happened to them. I don’t know where they are,” and so you might see this in that situation.

So, let’s move on and discuss each of the fault grounds that are available because, as we all know, there are fault grounds available in Texas that you can plead. And I would say there are two that are most common, and those would be cruelty and adultery. Let’s start with cruelty. What exactly does that mean under the family code?

Carrie Tapia: It’s a good question. It generally means that there’s some type of pretty severe abuse that occurred. I would say the times that I’ve seen it granted would be physical abuse. You can plead that if there’s mental cruelty, emotional abuse, things like that, but the bar is high.

You have to have some pretty, pretty severe actions that you can prove up in order to meet the cruelty ground. Evidence such as police reports, you have a protective order against them that’s already been found, there’s medical records, witness testimony from an uninterested witness, text message or email evidence.

It needs to be more than just the testimony of the victim, and it needs to be more than just, “He says mean things to me.”

Holly Draper: And if you actually have to go to trial and you have bad facts against the other side, you know, cruelty is one that you might want to amend and include if you’re actually going to be going to trial because this is one of the things that I think can get you a disproportionate share of the estate.

If the other side has been abusive, the other side has been just awful to your client- Right … then this is something you want to make sure that you amend to plead if you haven’t done it at the beginning. I think it plays a bigger role in the property division, but I do think it can impact custody. If we have somebody who’s guilty of cruel treatment, maybe they’re less likely to get a 50/50 schedule, or maybe they’re less likely to even get expanded standard because of the type of behavior that has been going on in that house.

Carrie Tapia: Especially if it’s cruelty based off of family violence, then there’s other implications for custody that n- would be considered.

Holly Draper: Right, because if you get a family violence finding, and if you’re looking for a family violence finding, you probably also should have a foreground of cruelty in there- Yes

because those things seem to go hand-in-hand. But yeah, that’s going to give you implications on managing conservatorship and other things on the custody side. Okay, adultery, everybody’s favorite foreground. So this is the one, you know, I, I can’t even tell you how many conversations I’ve had to have with the non-guilty party when adultery was an issue in a case about how judges really don’t care.

Unless money was spent on an affair, or unless something really bad was happening in front of the kids, then most judges, in my experience, do not care. And I’ll, I’ll tell my clients, you know, “Look, this judge has heard it all. They have seen the worst of the worst.” You know, I had a judge tell me once, “Everyone’s got a reason for getting divorced, and that’s yours,” when we were talking about adultery.

What have you seen? What has been your experience?

Carrie Tapia: The same. I don’t think that I’ve had many judges care about it unless there was waste. They care about the waste. They care about waste even if it’s not adultery, right? But I agree. I’ve had countless conversations with people trying to explain that adultery is not the smoking gun that they want it to be.

The way I explain it is that judges hear- Thousands of divorces, and in most divorces there is adultery. Maybe it’s the reason that you’re getting a divorce, maybe it’s a symptom of the reason, but there’s a lot of adultery going on in divorce cases, and so judges hear it. It’s not surprising. It’s just kind of a reality that is the norm in a divorce case.

And so unless there’s something else that accompanies that, you’re not going to get a disproportionate division, maybe a tic- maybe a tiny little bit, at least in the courts that I’ve practiced in. I have heard it might be different in smaller counties, like smaller towns, judges that maybe don’t hear thousands and thousands of divorces a year, but that’s not been my experience

Holly Draper: I do think adultery can really impact a case, though, and I touched on this a little bit already, but when it comes to negotiating.

Yeah. And somebody who has done things that are not something they want to get on the stand and testify about is typically going to be more generous in their settlement negotiations, especially on the property side, I think. I also think if they’re dating somebody else and they want that relationship to continue post-divorce, they really don’t want you dating on that person.

They really don’t want you to depose that person, to call them as a witness, those sorts of things. So having tho- Like, we want to know if these things- Right … happened, whether on our client’s side or the other side, because those are issues that really come up a lot as we’re negotiate, negotiating, as we’re debating, you know, whether or not a particular deal is a good one for our client.

Depending on which side of the adultery thing our client is on is going to help us, you know, do you really maybe- Right … want to take that deal? Do you really want to get up there and talk about this? Do you really want all these text messages showing up on the big screen in front of a crowd full of people, showing that you were doing these things?

Carrie Tapia: What’s it worth to you to not have your girlfriend deposed?

Holly Draper: Right. And, you know, a lot of clients think because someone has filed for divorce, they now are free to live their best life and go hook up with other people or get into other relationships, and I would say it is not as big of a deal if you’ve already filed for divorce as it is before, but I would still strongly recommend against it.

Yes. Like, just keep it in your pants until the divorce is final and then you do you and do whatever you want. What’s your opinion on that?

Carrie Tapia: Oh, I agree. In law school, Professor Joe Spurlock said, “Don’t have a next until you have an ex.” That’s what he, that’s what he taught us in family law classes. I’ve used that line with my clients.

Holly Draper: Now, I do think that if the, we’ll call them innocent spouse, knew about adultery and regularly turned the other, looked the other way or didn’t get a divorce five years ago when you first found out about an affair, that kind of lessens the scene of adultery to, you know, well, you should’ve divorced him five years ago.

Carrie Tapia: Yes, I have made that argument on both sides

Announcer: This episode of the Texas Family Law Insiders Podcast is sponsored by the Draper Law Firm, providing family law appellate representation for non-parent custody cases, jurisdiction issues, property division, standing, conservatorship, possession and access, termination, parental rights, and grandparent access.

For more information, visit draperfirm.com or call 469-715-6801.

Holly Draper: Okay. There are a handful of other fault grounds. Those were the big two, but let’s quickly tick through the rest so we can make sure people know that they’re out there. Felony conviction, tell us about that.

Carrie Tapia: I forgot about this one until we were preparing for this podcast.

But if a spouse has been convicted of a felony during the marriage, they have to have been in prison for at least one year in state or federal penitentiary, and the conviction can’t be, have been based upon the testimony of the, the other spouse, then you can file for that. It seems like it’d be a pretty straightforward way to get a divorce if the other spouse is incarcerated.

I still don’t see why you wouldn’t just plead insportability, but I guess if it makes you feel better.

Holly Draper: Well, maybe if, if the spouse is incarcerated, especially if they have money, then you might be looking at getting the defaults, and you might want to have those fault grounds that you can prove to help get a disproportionate share of the estate.

Or if you have- That’s- If, if your client has money, and you want them to keep it

Carrie Tapia: That’s true. I guess I was maybe having some bias there.

Holly Draper: We never have that.

Carrie Tapia: I try.

Holly Draper: The next one we have would be abandonment. Now, I cannot tell you how often I see in Facebook groups, usually moms groups, of people throwing out the word abandonment and thinking that if I move out of the house before I file for divorce next week- Yep … I’m going to be found to have abandoned the kids or the family or whatever.

What is the legal definition of abandonment when it comes to divorce?

Carrie Tapia: You have to have left and remained away for at least one year with the intention of abandonment. So I would argue that that means full and total no contact. And both of those elements have to be proven, that it was a voluntary departure and the intent to abandon, to abandon.

Holly Draper: So when we’re talking about a voluntary departure, that would exclude from this someone who left because of safety concerns. My advice to someone who leaves for safety concerns is don’t wait over a year to file for divorce, but-

Carrie Tapia: You shouldn’t…

Holly Draper: … people have their reasons that, and that, you know, you could have a client come into your office that that’s the case, where they’ve, somebody’s left due to safety concerns.

But that would not be abandonment. I don’t know, in 17 plus years of practicing family law, if I’ve ever actually seen this one pled. Have you?

Carrie Tapia: I don’t think so, no.

Holly Draper: And a- another way maybe that it might come in handy, I think we touched on this a little bit, was, you know, if somebody has left and this person finally is getting around to divorcing them and they’ve accumulated some assets since that person left, maybe you do want to include these fault grounds to get a disproportionate share of protecting those assets that this person has accumulated since they were abandoned.

Because if you don’t do that, and you’re looking at the date of division as the date of divorce- Right … so whatever that person has accumulated during that time is on the table, subject to being divided

All right, we have one last fault ground …

Carrie Tapia: Confinement in a mental health hospital. So, if a spouse has been confined in a state or private mental hospital for at least three years, you can use this ground. You have to show that the mental disorder must be of such degree that release is unlikely or that relapse is probable.

This is another one that I think I’ve never seen, and I was thinking about it, and I wonder if you plead this ground, if you might accidentally open yourself up to a risk of lifetime spousal maintenance if your other side is disabled.

Holly Draper: So, I wonder- And I also think you open yourself up to there needing to be a guardian appointed- Mm-hmm

to represent the other side. I think there are a lot of issues that aren’t obvious from just the words and the fault grounds about-

Carrie Tapia: Right …

Holly Draper: what you need to think of before you go down this path.

Carrie Tapia: I thought of more reasons to not do it than to do it. I wasn’t able to come up with a good reason that you should plead this ground, because I think you open yourself up to more harm.

Holly Draper: Now, if these are the circumstances, you still are potentially looking at lifetime spousal and a guardian, because we obviously have an incapacitated person on the other side. So if someone is in a situation where their spouse is going into a mental institution, I would probably not wait three years. I might pull the trigger right away on filing for divorce, and you still could end up in those places.

A lot to think about for that one. So that gets us through all of the fault grounds that we have in Texas. What are your final tips for family lawyers when they are considering fault grounds, and what they should or should not plead?

Carrie Tapia: I think ultimately your client’s goals should always be paramount in what we’re going to plead, obviously.

But with that comes counseling your clients and explaining to them the risk versus the reward. We don’t want to throw good money after bad, so to speak. So have those conversations have– And they’re hard to have those conversations. It’s hard to tell somebody that’s upset about being cheated on or those situations that, “Sorry, the judges are going to care, and you should really just settle this out for a fifty-fifty.”

It’s, it’s difficult to have those conversations, but I think being upfront with your clients about it at the beginning of the case sets those expectations, and ultimately will put them on a path going forward better than long, drawn-out litigation where they are unlikely to end up with much more than they would otherwise

Holly Draper: Couple of little tips for practitioners.

You know, if you do as we typically do, and as we would recommend, and start with insupportability grounds, maybe have a reminder for yourself- Yes … a certain amount of time before trial, do we need to amend? Because if you aren’t able to get that reasonable settlement, and for whatever reason you are going to trial, then if you have fault grounds, you absolutely want to plead them. And you-

Carrie Tapia:  And I- .

Holly Draper: .. want to make sure you amend and get them in there.

Carrie Tapia: And I would say don’t just amend seven days before trial per TRCP, because then you’re opening yourself up for a continuance of trial, because then there’s not adequate time to conduct discovery on those issues. So I would make that reminder at 90 or so days before trial to make sure that you get that pleading amended to allow adequate time for discovery.

Even that’s kind of cutting it close, 90 days, but just allow adequate time for discovery on those issues.

Holly Draper: Well, and I know a lot of counties

Carrie Tapia: …won’t let you

Holly Draper: They’re not giving you that much time, where y- I mean, you can’t… I mean, not, I mean, you might be setting a trial 120 days from when you file. So it’s not necessarily realistic to amend more than 90 days before trial.

You might want to wait to see if you’re able to settle a mediation. If you’re, you know, you want to give it a chance to reach those agreements, assuming that your client would like to do that, which I try to encourage most clients, that if you can reach an agreement, let’s do it. But, you know, just gotta think about what court you’re in and what the right strategy is based on the particular facts of whatever situation you are dealing with.

So, I think that pretty much covers everything we’ve got for grounds for divorce today. Carrie, thanks so much for hopping on with me as always. Yeah. And for our listeners, go please leave us a quick review, and subscribe to enjoy future episodes. And if you happen to have any good podcast ideas, please reach out to me and send them my way.

So, I would love to know what you all want to hear about and what you think would be interesting, or if you think that you know of an interesting speaker that I might want to bring on. So thanks.

Announcer: The Texas Family Law Insiders Podcast is sponsored by the Draper Law Firm. We help people navigate divorce and child custody cases, and handle family law and appellate matters.

For more information, visit our website at www.draperfirm.com.