Family Law

Grounds for Divorce: Insupportability

By Melissa Heinig, Attorney
Learn about using insupportability as a reason for no-fault divorce.

It’s no surprise that nearly 50% of all marriages end with one spouse filing for divorce. Although some married couples break up because of substance abuse, adultery, or neglect, most couples choose to divorce simply because they’ve outgrown each other and the relationship.

What Is Insupportability?

Insupportability is a legal way of saying that you and your spouse are experiencing turmoil in your relationship that isn’t either spouse’s fault. For a more specific definition, you can refer to the Texas Family Code, which defines an insupportable marriage as one that is experiencing “discord or a conflict of personalities that destroys the legitimate ends of the marital relationship and prevents the reasonable expectation of reconciliation.” (Tex. Fam. Code §6.001.) In other words, when your marriage has reached a point where you don’t agree on fundamental topics, you’re always arguing, or neither spouse wants to remain married, you can file for divorce.

Contrary to what the name implies, insupportability doesn’t have anything to do with one spouse’s refusal or inability to financially support the other; it can mean many things. For example, if you and your spouse decided to get married after only dating for a short time, it’s possible that as your relationship grew you realized that you no longer had anything in common, or that you had differing opinions on critical issues like children or religion. If you’re willing to tell the court that your differences make it impossible to remain married, the judge will grant your divorce.

What Is No-Fault Divorce?

No-fault divorce is a fancy way of saying that no matter what the reason, you can file for divorce if either spouse decides they no longer want to be married. Unlike a fault divorce, which is only available in a few states, a no-fault divorce and/or divorces based on separation are options for divorcing couples throughout the United States.

To begin the process, you’ll need to file a petition (request) for divorce with your local court. Every divorce application must include the reason (or, grounds) for divorce, which can be no-fault (insupportability, incompatibility, or irreconcilable differences) or in some states, fault-based (adultery, substance abuse, or abandonment.) In some states, you can file for divorce based on a separation of a certain length.

Couples will need to meet their state’s residency requirement before filing as well. If you’re not sure if you meet your state’s divorce requirements, you should contact an experienced divorce attorney in your area before you file.

The highlight of no-fault divorce is that neither spouse needs to prove to the court that the other is at fault for the relationship’s demise. Because there’s no finger pointing or mud-slinging necessary, it’s usually faster, less expensive, and less contentious than a fault divorce.

No-fault divorce also eliminates the need for spousal approval, so even if your spouse would like to remain married, the court will grant your divorce request as long as you meet the state requirements.

If you live in a state that allows fault divorce and you wish to accuse your spouse of marital misconduct, you’ll need to be prepared to introduce evidence to prove your allegations. It’s not enough to state in your petition that your spouse is at fault. Unless you provide the judge will actual evidence, like witness testimony, telephone records, or other documents, you risk the judge dismissing your case. If you can’t prove your fault divorce, you’ll need to refile using your state’s no-fault divorce process, which will cost more money and take more time.

Fault divorce commonly causes hurt feelings and emotional turmoil. If you have minor children and you plan to co-parent with your ex-spouse, it might be better for you to file a no-fault divorce to avoid unnecessary conflicts.

What Issues Will the Judge Decide in Our Divorce?

Whether you’re prepared to divorce using your state’s fault-based system or your relationship’s insupportability, you’ll still need to work with your spouse to decide how you’ll handle common divorce-related issues. Most couples can negotiate a divorce settlement that addresses both spouse’s concerns, but if you and your spouse are unable to agree, the judge will decide the following:

  • child custody, parenting time (visitation), and child support
  • spousal support, and
  • marital property and debt division.

If you and your spouse agree on most divorce-related issues, you might find it helpful to try mediation before asking the judge to decide for you. Mediation is usually a voluntary and confidential process where a neutral third party meets with the couple to help them agree on any unresolved issues. Mediators can help keep the conversation on track and ensure that neither spouse forces the other into an agreement. While the mediator can’t decide how to handle the issues for you, if you and your spouse negotiate a settlement, the mediator can put your agreement in writing and present it to the judge. Mediation costs vary, but it’s almost certainly less expensive than a divorce trial, and the parties usually split the cost.

Do I Need an Attorney?

Parties can file for divorce without the help of an attorney, or you can hire an experienced family law attorney to represent you. Couples should avoid using the same attorney. If you choose to file a petition for divorce on your own, it’s critical that you understand your state’s divorce requirements before you submit your motion to the court. If you fail to meet the residency or other divorce requirements, you risk the judge dismissing your petition, and you’ll need to restart the process over.

If you can’t afford to hire an attorney to represent you for the entire divorce process, you may want to employ an attorney to review any agreement before you finalize your judgment of divorce.

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