Do I need to appear in Court in the Courts are closed?
As a Family Law Attorney in Dallas County, Texas, during these COVID-19 pandemic emergency, I am posed with questions regarding how “am I going to get divorced with COVID-19 closing all the Courts?” Fortunately, the grounds on which a person can get divorced in Texas have not changed. Typically, under the Texas Family Code, most divorces are granted on the grounds of “Insupportability”. So, on filing a petition by either party to a marriage, the Court may grant a divorce without regard to “fault” by either party to the marriage if the marital relationship between the persons has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship between the parties and prevents any reasonable expectation of reconciliation.
Most court rulings in Texas hold that a person in a marital relationship does not have a legal duty to reconcile; although, there are some factions in Texas that are pushing for legislation which would require persons to complete counseling and extend the “60 day waiting period” before the Court will grant a divorce. However, currently the Legislature has in place the statutory grounds of “insupportability” to protect a person’s interest in seeking a divorce from their partner without requiring a person to make a showing of “fault”.
Even with COVID-19 in full force, in Texas, the “insupportability” grounds which is commonly referred to as a “no-fault” divorce has three elements under the Texas Family Code section 6.001 regardless of the pandemic. The person seeking a divorce has three statutory elements which the petitioner has the burden to establish the existence of when proving up the case in a Texas Court. Number 1, the person must establish that the marriage has become insupportable because of discord or conflict. Number 2, that the discord or conflict destroys the legitimate ends of the marriage. And number 3, that there is no reasonable expectation of reconciliation.
Under section 6.002 of the Texas Family Code, the Court may also grant a divorce in favor of one party if the other party is guilty of cruel treatment toward the complaining party of a nature that renders further living together insupportable. Insupportable means “incapable of being borne, unendurable, insufferable, intolerable”. Simple disagreements or trifling matters do not justify granting a divorce on the grounds of “cruelty”. COVID-19 has created a situation between spouses that has created an insupportability factor different from what is normally referred to as “insupportability”. Adultery can also be considered to be cruelty sufficient to support the granting of a divorce on that ground. Under section 6.003 of the Texas Family Code, the Court may grant a divorce in favor on one party if the other party has committed adultery.
Texas Courts interpret “adultery” to mean the “voluntary sexual intercourse of a married person with one other not the spouse”. Furthermore, adultery is not limited to actions committed before the parties separated.
Conviction of a felony is another ground for divorce in Texas. Under section 6.004, a Texas Court may grant a divorce in favor of one party if during the marriage, the other party has been convicted of a felony and has been imprisoned for at least one year in the Texas Department of Criminal Justice, a federal penitentiary, or the penitentiary of another state; and, the party has not been pardoned. However, the Court may not grant a divorce against a spouse who was convicted on the testimony of the other spouse.
Regardless of the fault alleged to have occurred in the marital relationship and in a subsequent divorce proceeding, it is relatively simple and inexpensive to attain a divorce against a spouse in the State of Texas. On the filing of any party to a marriage, the Court will grant the party a divorce without regard to whether or not there was “fault” in the marriage if the marriage basically has become “insupportable” and there is no “reasonable expectation of reconciliation”. The time in which a party usually gets to go in front of a judge to finalize their divorce has been delayed because of the COVID-19 pandemic. The Courts are allowing parties to a divorce to appear via an “affidavit” to avoid in person appearances; however, we have experienced weeks and sometimes months of delays in some counties.