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Does My Spouse Have to Agree to a Divorce?

Boyd Family Law Dec. 25, 2021

You may have experienced this yourself, heard a friend go through it, or even watched it on a soap opera – the spouse who refuses to agree to a divorce. Sometimes, the refusal is truly based on a belief that the marriage can be saved. More often than not, however, the words “I won’t give you a divorce” are uttered more out of spite or anger than out of love and commitment. If you are the spouse who is “asking” for a divorce, however, you may be less interest in your spouse’s motivation for objecting to the divorce than in knowing if that objection even matters. In other words, does your spouse have to agree to a divorce in the State of Texas or can you proceed without his/her acquiescence?

The Divorce Discussion

While there are probably a limitless number of creative, and sometimes unusual, ways to propose marriage, people are not typically as creative when broaching the subject of divorce. Either one spouse consults and attorney and springs the divorce papers on an unsuspecting spouse or the couple sits down and one spouse asks the other for a divorce. Although we routinely use the term “ask for a divorce,” there really is no need to ask your spouse anything if you want to end the marriage. Telling your spouse “I want a divorce” is really just a way of finding out how your spouse will react, not asking permission. Will this be a contentious and adversarial divorce or does my spouse want to end the marriage as well, meaning we can work out the terms without the need for a nasty divorce battle?

The Grounds for Divorce in Texas

In the State of Texas, as is the case in all states, there are a few requirements that must be met before a judge will grant you a divorce. For example, to file for a divorce in Texas, either spouse must have been a resident of the state for at least six months prior to filing, and must have resided in the county where the Petition is filed for the prior 90 days. In addition, when you prepare your Petition for Divorce, you must allege on of seven allowable “grounds” on which the divorce may be granted. Ultimately, you will need to prove the grounds alleged in the Petition. Texas is one of many states that has a “no fault” grounds, referred to as “insupportability,” defined as “if the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.” In layman’s terms, this just means you two don’t get along anymore and there is no chance you can fix your marriage.

The other six grounds on which a divorce may be granted in Texas include:

  • Cruelty by one spouse towards the other of a nature that renders living together unsupportable;

  • Adultery;

  • The commitment of a felony by one spouse, who 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 who has not been pardoned (This does not apply if the spouse was convicted on the testimony of the other spouse);

  • Abandonment for at least one year;

  • If the couple have lived apart without cohabitation for at least three years; and

  • If, at the time the suit is filed, one of the spouses has been confined in a state mental hospital or private mental hospital in Texas or any other state for at least three years and it appears that the mental disorder is of such a degree and nature that adjustment is unlikely, or if adjustment occurs, a relapse is probable.

Your spouse can certainly contest the grounds you allege in your Petition; however, that simply means your divorce will likely involve litigation instead of being resolved out of court with a Marital Settlement Agreement. The bottom line though, is that your spouse does not have to agree to a divorce for you to be granted a legal divorce.

Contact a Texas Divorce Attorney

If you have additional questions or concerns regarding divorce in the State of Texas, contact an experienced Texas divorce attorney at The Law Office of Jon R. Boyd to schedule your appointment today.