For Better, Worse, Or Divorce Podcast

In this episode, Jake Gilbreath and Brian Walters break down the ins and outs of no-fault divorces. Jake and Brian discuss the history and evolution of no-fault divorce laws, some of the latest legal developments currently in the news and how potential changes in these laws could impact families, finances and custody battles.

If you have a divorce case in the state of Texas and are interested in speaking to our team, visit www.waltersgilbreath.com or email podcast@waltersgilbreath.com.

Jake Gilbreath: Thanks for tuning into For Better, Worse, or Divorce Podcast. This is the podcast where we provide you tips and insight on how to navigate divorce and child custody situations in the State of Texas. So I’m Jake Gilbreath, I’m joined by my partner Brian Walters. And today we are going to talk about the term no-fault divorce, which is something that I hear a lot from clients and consults, and people who ask how their divorce is going. It’s like, what do we mean by no-fault divorce? What’s the legal meaning? What’s the practical meaning?

So I guess, Brian, first of all, what’s the background, the historical background of no-fault divorce? And then we can turn to legally what that actually means these days.

Brian Walters: Yeah, you used to have to have a reason to get divorced in the United States, and a reason being abandonment or adultery or something like that. You couldn’t just wake up one day and decide you wanted to get divorced. And so that made it very difficult to do. And in well-known cases, there’s actually movies about it, but stars in Hollywood would have to go to Nevada back in the ’20s and ’30s for a divorce. You could go to Reno back then, I guess Vegas wasn’t a thing, but you’d go to Reno and you had to be there for 30 days and then you could get divorced. You could go to Mexico. But that actually still required both people to want to do it that way.

But then things started to change, I think actually California was the first one, the big state to allow it, where it was no-fault. Which just meant either spouse could get divorced because they just wanted to. They didn’t have to have a reason, other than they wanted to. And by 1985, all 50 states permitted no-fault divorces. I think Texas was in the early ’70s, if I’m not mistaken, that that became the case. And not surprisingly, the divorce rate went up pretty quickly as soon as that occurred.

So that’s the history of it, and that’s where we stand today. All 50 states have no-fault divorce provisions. To varying degrees, some states take longer or shorter to get divorced. But in all 50 states you can just decide you want to be divorced, and then eventually get divorced.

Jake Gilbreath: Yeah, and that’s helpful. And I give that same speech to clients when they ask about no-fault. Or a lot of times it comes up when they’re asking me, say, “I want to file for divorce on fault grounds.” So I guess let’s talk about that a little bit, and then we can sort of circle back to you still, even these days, hear on the news of legislators or party platforms saying we want to do away with no-fault divorce, and whether or not that actually would happen or the impact that would have on divorce and family law in Texas and throughout the nation.

But I see this topic a lot. People come in, they say, “Well I want a fault divorce. I want grounds for my divorce. I don’t want a no-fault divorce. This is somebody’s fault they were going through divorce.” And spoiler alert, it’s usually the other side that the person perceives to be the problem in the break of the marriage.

And so I think history helps, right? Brian, what you were saying, there is a reason if you pull out Texas Family Code, there is a reason why you start with… I guess it’s section 6.001 that talks about insupportability. That’s the legal term for no-fault, is insupportability. But there’s a reason why, if you continue to read on, there’s sections that talk about adultery, there’s sections that talk about cruelty, abandonment, the things that you were talking about, Brian. And so there used to be, like you were saying, there used to be a legal reason why you’d have to prove fault in a divorce. Right? ‘Cause otherwise you’re stuck, you can’t get divorced unless you can prove something.

And it’s still, by the way, to add on to what Brian was saying, it’s still like that in other nations. I know all 50 states in the United States have no-fault divorces. My experiences, for example, in India under the Hindu Marriage Act, that you can’t have a no-fault divorce, what they call a consent divorce. I think you have to be separated by at least a year and do it by agreement, otherwise you have to have grounds.

We have in our Family Code these fault grounds. So fault grounds aren’t necessary anymore to get a divorce, right? Like Brian was saying, you can get a divorce because one person says it’s insupportability, the no-fault. “Look, I just want a divorce.” And we can have a long discussion about whether or not that’s how it should or shouldn’t be, that’s how it is. And that’s how our legal system is right now, it just takes one person saying, “I want a divorce,” for whatever reason. And legally you will get a divorce in all 50 states right now.

To get the divorce, you don’t have to have grounds like you used to, but grounds for divorce do matter, though, or can matter in a divorce when it comes to, for example, property division. And we’ve talked about this a lot in other podcasts, but when a court in the state of Texas divides up property they don’t necessarily have to… the court does not necessarily have to divide it up 50/50. So you’re going to get a divorce regardless if there’s grounds or not, but if you have grounds for divorce, what we would call fault in the breakup of the marriage is a factor that the court can take into consideration in dividing the property.

So by example, if somebody’s coming in and you’re looking at it in a state that normally would be split 50/50 for whatever reasons, but one spouse had an affair and that’s the reason for the breakup of the marriage, that’s something the court very well may consider, and probably will consider. And whether or not she divides the property 50/50 or she divides it up some other way. If somebody’s been cruel, there’s been family violence in the marriage, that’s something that the court most likely will take into consideration one way or the other when she divides the property up.

So that’s how grounds are used now as opposed to how they used to be used, where you’d have to have grounds to get a divorce. And so then I guess, Brian, the topic… I know that the next question I get from clients, I’m sure a lot of… “Well, do I go plead for it? Are we going to file a divorce petition that just says insupportability? What do our pleadings look like?” And I know you’re going to give me a, “It depends,” like we always start all answers in this podcast. But how do you think this sort of fault grounds and no-fault grounds plays into pleadings?

Brian Walters: Right. No, you’re right. We’re lawyers, so that’s the answer you usually get. I actually had this discussion about two or three hours ago with a new client, so fresh on my mind.

So 99 times out of 100 you’re going to put into the pleading the no-fault, which we call insupportability grounds, sort of as either the main or only reason or as a backup reason. That’s typically what you do. And then sometimes people decide to also layer on top of that a fault ground, adultery or cruel treatment or whatever the circumstances might be. Those are the two most popular.

You don’t have to, you could say simply, “I want to be divorced on the basis of adultery, period. I don’t want it to be insupportability.” The problem with that is, as your lawyer would tell you, is that, well, if you went to trial in theory and the judge said, “Well, I don’t really think that really occurred, the adultery occurred,” then I guess arguably the judge could say, “Well, I can’t divorce you, ’cause you haven’t asked me to do it on the grounds of no-fault or insupportability, and I don’t think there’s been adultery, or I’m not going to find that there’s been adultery.”

So that’s the way we typically do it, probably 90% of the time just insupportability, 80 to 90% of the time. And then almost all the other times insupportability with one or more fault grounds.

Jake Gilbreath: Right. And these things can be amended. I mean, every single case is different. There may be a strategic reason why the initial divorce petition, maybe there has been adultery, but you don’t want to kick off the case by poking somebody in the eye and putting it out there in a public document, he or she’s committed adultery. And then we go to mediation if it doesn’t settle, all right, well now we’re going to amend the petition and allege the grounds. And that is something that happens. There’s sometimes a strategic reason.

The case law is, personally, that you don’t have to plead specific grounds to be able to present evidence on it, ’cause the court can take whatever into consideration in making her just and right division. But having said all that, it’s better practice to have, if you’re going to go to trial and you’re going to talk about adultery or cruelty or something like that, it is better practice, in my opinion, to actually have a pleading on it. Because I don’t think every single trial court sees it the same way that you… I’ve had trial courts, for example, say to the other side, for example, if they try to say something about adultery but they haven’t pled for it, say, “Well, you can’t put on any evidence for adultery. You didn’t plead that as grounds.”

Which again, I don’t think legally is correct, not as I read the case law. But why even have that discussion, right? If you’re going to trial, your pleadings need to be spic and span and ready to go, and so you don’t even have that argument. So a lot of times maybe you’ll start off and say insupportability now, and then if we’re going to trial then we’re going to amend it.

On the flip side, I think emotionally sometimes people that come where something has happened in their marriage and they do want it in the document, even if it’s not going to be emotional, an illegal impact until we get closer to trial. But it’s happened, right? And it’s horrible that it’s happened and they want that in the petition. Which I get that too.

All of this to say, it just needs to be a discussion with the client before a lawyer says you have to put this ground in there or you can’t put that ground in there. There just needs to be a discussion on the pros and cons of doing it.

Brian Walters: Yeah, exactly.

Jake Gilbreath: And then I guess let’s talk about something related to one of the reasons why we’re having this discussion, no-fault, because with elections and everything, every single time, or when legislators come in, there’s always discussion about whether or not they’re going to do or a particular state would do away with no-fault divorce. So I think there’s party platforms out there, I know, specifically I think of the state of Texas, I know Nebraska and Louisiana have been amended in the last couple of years, that call for the removal of no-fault divorces. I think Oklahoma proposed a bill last year trying to eliminate no-fault divorces. None of this has ever passed, but it’s always a discussion. There’s usually a discussion in the state legislature in Texas about whether or not we change the waiting period before you can get divorced, or if we require a waiting period before you can even file.

I guess, Brian, practically speaking, let’s talk about if the state legislature came in and said, “No more no-fault divorce,” how would that impact things if that did happen?

Brian Walters: Well, I think it would make it a lot harder to get divorced, in many cases, that’s for sure. And I think that’s one of the reasons you won’t ever see that occur, I think that’s very unlikely. But I guess you can discuss it, people discuss it or people introduce bills all the time.

But the problem with that is we’d go back to sort of the situation that we had prior to this, what would happen, let’s say that two people were married and the husband just said, “I’m done. I’m moving in with my girlfriend. I can’t take this anymore.” Well, what would happen in that situation? Well you could, if you’re the husband, you can’t file for divorce because your wife hasn’t done anything wrong. She’s not committing adultery, and I’m assuming she’s not being cruel to you. And maybe the wife doesn’t want to get divorced. Maybe she wants to try to work it out or hope that he comes back home or something.

So in that case, you’re stuck being married to each other. You can’t remarry somebody else. In our system we don’t have legal separation, so you continue to be a single economic unit, even though you’re not living together. It would become very, very difficult, very quickly. And to me, that seems really unlikely that that would occur for that reason. I think we’re probably a long way away from that occurring here in Texas, at least.

Jake Gilbreath: Yeah. It seems like something you can propose to maybe tell your constituents that you’re opposed to divorce and no-fault divorce, but your worst nightmare would be that your bill actually gets passed and somebody would actually vote for that.

I think it’s a lot the same thing as the waiting period, too. So first of all, if they took away no-fault divorce, I mean, think about a client that’s coming in and saying, “Look, we don’t get along anymore. We discussed it, and we’ve moved on. We’re not emotionally there, but we’re totally amicable. We’re going to work things out. We don’t want to fight, but both of us really just want to get divorced.” And the lawyer says, “Well, I’ve got bad news for you. You can’t get divorced unless one of you cheats on the other one or one of you has been cruel to each other.” Okay, well now you’ll figure out some way that he’s been cruel to me or she’s been cruel to me. But now we’re fighting about something that people wouldn’t otherwise fight about.

And I see this in other jurisdictions, right? Where people that require fault grounds for a divorce, other jurisdictions being other countries, and people go find their grounds. They will go find their grounds for divorce if you make them go find their grounds. Or we could say there’s reasons why people are getting divorced. We don’t have to say why, but they’re parting ways and they’re going to divide their stuff up and hopefully raise their kids together. And obviously if we’re litigating then we’re litigating, but we’re not going to be fighting about whether or not we actually can get divorced or not.

But, I kind of view it the same as when they propose every two years in this state they come up and somebody says, “Let’s make people wait a year before they can file for divorce.” I mean, I think practically speaking what would happen if we told people you have to wait a long period before you can file for divorce, is that people, frankly, are going to hire lawyers at the beginning of separation and then have to pay lawyers, me and Brian for example, for a full year before they can even start the process of getting divorced. And so I guess that’d be really good for divorce lawyers, it sounds like it’d be really bad for families if that happened.

And so I’m like you, Brian, it’s like, you see it pop up. People call us sometimes and they’re saying, “what happens if this passes, or if this goes…” And I’ll believe it when I see it. I don’t think that’s realistically something that’s going to happen. But it’s a good reminder, though, of how we got to where we’re at. And I guess broadly speaking, just back to the issue of no-fault, we do have no-fault divorces because a spouse isn’t chattel. At the end of the day, I don’t own my spouse. And so if she wants to get a divorce it shouldn’t be that she has to go, she or he, has to go litigate to get out of the marriage relationship with me. I think that’s why you saw the push for no-fault divorces in the seventies and the eighties.

So that’s a long way of saying it. The history’s interesting, I think it does play into the decisions that people will have to make. I don’t think there’s a realistic chance that no-fault divorce goes away in really any state in the United States, certainly not in the state of Texas. But the discussion about no-fault versus fault is something that should be discussed in the initial consult. People do need to understand the impact that those grounds can have on a divorce, and how it’s going to be used in your particular divorce.

So I think we wrap up this topic with that. Always interesting, particularly when we get to do a little history lesson. So we’ll end the topic on that for today. As always, if there’s a topic that y’all want us to discuss on the podcast, or if you’re interested in speaking to our legal team directly, or me or Brian, please just email us at podcast@waltersgilbreath.com. We always love feedback, we love reviews. Appreciate y’all listening.

So I’m Jake Gilbreath, I’m here with Brian Walters, and we appreciate y’all joining us.