Whether or not the couple has children, the legal procedure for a divorce is similar to the procedure for other lawsuits.
The first step should be to hire an attorney. Although, it is possible to get a divorce without the assistance of an attorney, the process will be incredibly difficult, and it will be virtually impossible to know if your rights are being protected. An attorney will be able to guide you and make sure you have full knowledge about the applicable statutes. But, perhaps most importantly, an attorney will be able to approach the issues objectively, without succumbing to the emotion of the divorce.
Like many states, Texas has a no-fault divorce system, which simplifies the divorce procedure. Under a no-fault system, the spouse seeking the divorce merely files a petition with the court saying that the marriage has failed due to conflict of personalities, with no reasonable expectation of reconciliation. Under a no-fault system, a divorce can be granted without either spouse being forced to prove that the other was at fault in breaking up the marriage. Under a no-fault divorce, usually the property and debts gathered during the marriage will be split evenly (50/50).
That does not mean that fault is never considered in a Texas divorce.
A spouse may still note in the petition for divorce that the other person was at fault in breaking up the marriage. If a court agrees that one spouse’s actions created fault, a bigger share of the property may be awarded to the spouse who is not at fault. Under Texas law, “fault” is defined as (1) adultery, (2) cruelty, (3) conviction of a felony and/or (4) abandonment.
The effect of claiming fault in the break-up of the marriage depends in large part of which county your case is filed in and which Judge will hear your case. Some judges apply less “penalty” for fault to the division of property than others. For example, some judges feel very strongly against adultery and will penalize a party heavily if he or she has engaged in extramarital activities. Other judges believe that an affair doesn’t break up a marriage — it was probably broken before the affair — so they don’t change the percentage of the division of property very much based on adultery.
No matter the fault in the break-up of the marriage, there is rarely a case where a spouse is so much at fault that one spouse will “get everything” and the other spouse will get nothing.