While no-fault divorce is the most common way to file, many couples decide to file a fault-based divorce. Using “irreconcilable differences” allows you to divorce without demonstrating fault by one party. Couples use this most often to avoid a protracted and expensive legal battle, and to get things over quickly.
But if you have cruelty or other grounds for a fault-based divorce, then you may be able to request a larger share of the marital assets and community property. You can also request restraining orders and other restrictions, including financial if you use cruelty grounds for divorce.
Defining Cruelty in Divorce
Texas divorce law does not have a specific definition of “cruelty.” Using cruelty grounds for divorce is not the same as irreconcilable differences. Although cruelty does create irreconcilable differences making the marriage unsustainable, you must have proof of cruelty for the court.
The court recognizes three types:
• Physical cruelty, such as domestic violence
• Emotional cruelty, also called verbal abuse, is used to intimidate and threaten not only a spouse but also children, relatives, and friends
• Mental cruelty, in which the partner attempts to undermine someone’s mental stability with humiliation, gaslighting, intimidation, isolation, and other tactics. However, this type is difficult to prove in court and may be combined with the other two forms to show an overall pattern of cruelty.
Listing a one-time incident would not be enough to show cruelty unless it was physical and of a particularly odious nature. A documented and continual pattern of one or more types throughout the marriage (or through most of it) would be required to demonstrate cruelty by the other party, showing when and where it began.
While the court can’t use cruelty grounds for divorce, to punish the offending party, it can use it for a right and fair division of assets and property. The court can also use it in decisions involving spousal maintenance (alimony) where warranted, including the amount and duration of payments.
Proving Cruelty Grounds For Divorce
If you file for divorce on the grounds of cruelty, the burden of proof is yours. So you’ll need to produce as much evidence as you can locate to substantiate your claim, such as:
• Police records
• Medical records, including mental health records, referencing your abuse or the effects of that abuse
• Personal documentation, including journaling
• Emails, text messages, direct messages, and other electronic messaging between you and your spouse
• Voicemails left by your spouse
• Any handwritten or physical notes or letters from the spouse
• Testimonies from others who have witnessed cruelty from your spouse, including friends, coworkers, family members, and others
• Any other physical or electronic documentation
One of the most dangerous times for a spouse is when they are preparing to leave. Therefore, it’s extremely important to prioritize your safety and the safety of your children to make a safe exit.
How Would Cruelty In Divorce Impact Child Custody And Visitation?
The court’s first concern is the safety and best interest of the child in any custody decision. If there is proof of cruelty in divorce, the court will consider awarding supervised or limited visitation, especially if criminal charges are pending. Visitation can also be suspended until the party completes anger management and/or parenting classes.
When the court discovers the presence of family violence, the likelihood of joint custody is much lower. After all, it is not likely to be in the best interest of the child or children to send them back to an environment of cruelty and/or family violence.
In a he-said/she-said situation, there may not be enough proof to show cruelty, even if the children witnessed the incident. But if a parent is convicted on domestic violence charges, then the other parent can be awarded sole conservatorship (custody). The convicted parent will only be allowed restricted visitation, if any, such as supervised visits of just a few hours on a weekend.
Contact Wendy L. Hart For Cruelty Grounds For Divorce And Other Family Law Matters
Divorce is always difficult. Cruelty in divorce can make things much more difficult, both legally and emotionally. But you don’t have to go through it by yourself.
Wendy L. Hart has been helping both men and women and their families through divorce since 2001. With an experienced and compassionate divorce attorney on your side, Ms. Hart will work for the best possible outcome in your case.
The first step is to contact the Law Office of Wendy L. Hart at (817) 842-2336.