Fault Versus No Fault Divorce
Info from Our Houston Divorce Lawyer
New York just recently became the 49th State to adopt no fault divorce. Texas adopted no fault divorce in 1972. In Texas, we call no fault divorce “insupportability”—“the marriage has become insupportable because of discord or conflict between the personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.”
When I first started practicing law in Texas, many of the older attorneys insisted on alleging and trying to prove fault in a divorce — and what it did was to bring every divorce down to the lowest level of human conduct. I saw many, many cases where otherwise good people ended their marriage trying to destroy each other. Destruction should not be the objective of divorce. Instead, divorce should be a survival option and a way to build, hopefully, a better future.
In handling divorces, I try to proceed on the assumption that I am dealing with two good and decent people, that one or both of them have made the decision to proceed without their spouse, and both deserve the opportunity to end their marriage with a degree of grace and dignity.
Even when fault is involved in many cases, it is better not to use it as a grounds for divorce. Sometimes it is just going to make a bad situation worse. And I have seen quite a few cases where the person who is alleging fault ended up becoming so obsessed with proving fault that in the long run they end up losing. I never will forget a case I tried a number of years ago where the women was mean, mad and vindictive and was determined to prove her husband was at fault (with some merit). After she got through testifying, the judge (a woman) simply looked at the husband and said “Sir, now I understand why you want a divorce.”
There are a few cases where the fault is so bad that occasionally it still plays a role in divorce. And even in cases where fault is really bad it is frequently better not to use it – quite commonly the wrong doer feels so guilty that they will make a very good settlement if nothing is mentioned about fault. Once fault is dragged out in the open and people get over the initial shock, sometimes they simply develop an immunity (and thick skin) towards their own fault.