While many divorcing couples opt for a no-fault divorce, Texas allows one party to include specific grounds for divorce in their filing, including the conviction of a felony during the marriage.
When a conviction is used as grounds for divorce, the non-convicted spouse may be favored in the division of assets and child custody. In cases with children, the court will focus on the best interest of the child.
Grounds For Divorce Following Conviction Of A Felony
As with any divorce, you must meet the residency conditions before filing: live in Texas for six months before filing and the county where you plan to file for three months before filing. Additionally, these three conditions must be met to file for divorce in Texas based on a felony conviction:
- The spouse was convicted of a felony during the marriage
- There has been no pardon for the spouse for the conviction
- The spouse has been incarcerated for one year or longer at any state penitentiary, a federal penitentiary, or within the Texas Department of Criminal Justice.
When filing the divorce petition, the filing spouse must describe the conviction and how it has impacted the family. This includes the type of felony, the date of conviction, and how the conviction affected the spousal relationship and relationship with the children (if any).
Property Division and Child Conservatorship (Custody)
The non-convicted spouse may be favored when dividing up marital assets, especially if they can show that the felony for which the other spouse was convicted negatively affected the family’s financial situation. If the convicted spouse depleted marital assets, the non-convicted spouse may be awarded a larger amount of the marital assets to mitigate the damages.
The court’s primary concern is the child’s best interest. Therefore, a convicted spouse will likely see their visitation and parental rights significantly curbed, especially if the conviction of a felony involved dangerous or violent behavior. In some cases, the convicted spouse may see his or her parental rights terminated completely. The non-convicted spouse may request sole managing conservatorship, meaning that the convicted spouse will have little or no authority for decision-making on behalf of the child or children.
Each situation is different, and much will depend on the circumstances. Recent charges involving violent crime or a long-term criminal history will be considered more than a conviction more than 10 years ago. The court may award supervised visitation for the convicted spouse in a “safe” place, or not at all. The standard visitation schedule probably won’t apply here.
Can An Incarcerated Party File For Divorce?
It’s not uncommon for someone to file for divorce while their spouse is incarcerated after the conviction of a felony. It’s somewhat more complicated, but the process is the same, including serving them with papers. The incarcerated spouse must work with an attorney for representation in court proceedings, or attend via video link (Zoom, Skype, etc.)
Occasionally, an incarcerated party decides to file, with or without grounds for divorce. They can access the forms in the prison’s library where there are packets of documents for inmates to file their divorce. Serving the non-convicted spouse will require the assistance of a friend, family member, or a hired process server to notify them of the incarcerated spouse’s filing.
If both parties agree to an uncontested divorce, the process is straightforward. But if one party contests the divorce, the judge will have to make decisions about both the marital assets and child conservatorship.
Tarrant County’s Compassionate Divorce Attorney
Since 2001, Wendy L. Hart has been helping people in the Fort Worth area with various family law issues, including divorce. She represents men and women in all matters, including child support, child custody/visitation, estate, and other family law cases. As a divorcee, she understands what’s involved when a relationship breaks down.
If divorce is in your future, we’re ready to help. Call us at (817) 842-2336 or use our online contact form to schedule your virtual consultation or appointment. We serve clients throughout the Fort Worth Area.
