No-Fault Divorce May Come to End in Texas

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| by Sonya Carrillo |

The days of couples being able to file for divorce without assigning blame for the end of the marriage may be coming to an end in Texas. A set of bills moving through the Legislature, H.B. 65 and H.B. 93, could potentially rewrite the laws, making it more difficult for couples to seek a quick and relatively uncomplicated split.

The bills propose that divorcing couples must agree to one party being at fault for the divorce. Then, two scenarios follow. If the couple can agree and don’t have any children, they could be divorced after 60 days. If they can’t agree, a full trial will determine who is at fault for the divorce – even if they have settled all of the other issues in their case. If there are children involved, the 60-day wait is increased to 180 days, but the same rules apply as to the fault grounds.

The proposal is meant to incentivize couples to work through differences. That is what the current 60-day waiting period was designed for – a sort of cooling off period. However, the proposed legislation will likely have the opposite effect. Couples with children will end up in prolonged litigation, spending unnecessary funds on trials to place the requisite fault on one party, all while trying to co-parent children. 

The Blame Game

If one person gets the blame, the process would be expedited. Faults include conviction of a felony by one spouse, confinement by one spouse in a mental hospital for a minimum of three years, allegations of cruelty, abandonment, and adultery.

Although still a long way from becoming law, the bill has already lined up a number of backers and opponents. Proponents say it will help strengthen the bonds of marriage and family in the state of Texas. That flawed thinking assumes that forcing people to remain in a broken marriage will cure all and fix families.

Families in Limbo

When no real fault is assigned, the bill would essentially create a three-year waiting period before divorce proceedings can really commence. In this scenario, the couple’s divorce could be granted under the “living apart” grounds, wherein the court may grant a divorce in favor of either spouse if the couple has lived apart for at least three years. In my opinion, three years is a long time, and people are only human. My experience tells me that if couples choose to take this route, they will move on with their lives before their divorce is final. They will date other people and begin lives with those people, leaving children in a state of limbo. In addition, these people could start families with their new significant others. These children would be considered children of the marriage that is pending in divorce limbo, even further complicating the divorce process. The family courts are already backlogged, sometimes taking up to a year to set a case for final trial. This proposed legislation will cause an even further backlog in the family courts as these cases would remain pending for extended periods of time. 

In the Trenches

Unfortunately, the author of this legislation, although a lawyer, is not in the trenches with these families day in and day out. As a family lawyer, I know this legislation will unnecessarily complicate divorce proceedings and place a heftier financial and emotional burden on families by requiring more legal fees to justify fault in court proceedings.

The Texas Family Code, as it’s written today, promotes the amicable settlement of disputes between parents and says that parents may enter into written agreements. It’s been my experience that most judges don’t like to make a finding of fault in a divorce trial. The reason they most often given is that the parties’ Final Decree of Divorce becomes part of a public record, and I’ve often heard judges say, “What if the parties’ children see it one day?”

While the fate of this latest proposal remains very much unknown, it’s important for couples to understand the potential complexities it may add to divorce proceedings.

When we were discussing this article, my boss, Barbara Nunneley, brought up an interesting anecdote. “In guiding people through the divorce process for more than 36 years, I have never had one person come back to me and say, ‘If the law had only made me stay married a year or three years longer, we would have worked everything out!’ ” Legally prohibiting two people from getting a divorce until one or three years pass is both unjust and psychologically damaging.

Interestingly, this proposal is being floated at a time when the divorce rate in the United States and across Texas is on the decline. According to the U.S. Centers for Disease Control and Prevention, the number of divorces in 2014 added up to about 3.2 per 1,000 people across the country. That number is down from about four divorces per 1,000 people in 2001. 


Sonya Carrillo was admitted to the State Bar of Texas in November 2011. She is a board certified Family Law attorney with Nunneley Family Law.