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Tuesday, June 26, 2012

Divorce

There are grounds in Texas, including insupportability for a divorce. Our Law Firm is familiar with those grounds, and here is some research on the law on some of the grounds.

Under Const. art. 5, § 8, relating to divorce, legislature is given complete authority over matter of providing for divorce actions and necessarily has full authority not only to prescribe all "grounds" for securing a divorce, but may also prescribe any "qualifications" which it declares a petitioner must have before seeking relief in the state courts. Pappas v. Pappas (Civ.App. 1941) 146 S.W.2d 1115.

State Legislature has broad power to regulate and thereby change conditions for obtaining a divorce by its residents. Hopkins v. Hopkins (Civ.App. 1976) 540 S.W.2d 783.

This section does not violate due process. Saltarelli v. Saltarelli (App. 2 Dist. 1984) 670 S.W.2d 785.

"No-fault" divorce statute did not violate Establishment Clause or Free Exercise Clause, despite claim that terms "reconciliation" and "legitimate ends of marriage" were objectively religious; trial court was not asked to make a religious determination, but rather to determine whether continuance of marriage relation had been rendered intolerable to the other party, and was productive of no possible benefit to society. Waite v. Waite (App. 14 Dist. 2001) 64 S.W.3d 217, review denied, stay denied, rehearing of petition for review denied.

"No-fault" divorce statute did not violate state "right of conscience" constitutional guarantee, despite claim that terms "reconciliation" and "legitimate ends of marriage" were objectively religious. Id.

"No-fault" divorce statute did not violate "free institutions" clause of State Constitution; marriage was not one of the institutions contemplated by the clause, rather, language "free institutions" referred to institutions of state government necessary to ensure right of local self-government. Id.


"No-fault" divorce statute did not violate "open courts" provision of State Constitution by abolishing defense of recrimination; provision did not apply to suits for divorce, which were not common law causes of action, but were statutorily created and regulated proceedings. Id.


Term "suit for divorce", relates to particular class of suits for causes arising after marriage. McDade v. McDade (Civ.App. 1929) 16 S.W.2d 304.

Statutory grounds for divorce should be strictly construed. Buckner v. Buckner (Civ.App. 1930) 27 S.W.2d 311.

Divorce statutes should be strictly construed. Woody v. Woody (Civ.App. 1963) 371 S.W.2d 576.
Wife's argument that application of no-fault divorce law had deprived her, without due process, of vested personal property rights in marital estates, namely, the medical benefits to which she was entitled to as the wife of a retired air force officer was without basis, since record did not reflect that wife had not been afforded adequate notice or a fair hearing. Hopkins v. Hopkins (Civ.App. 1976) 540 S.W.2d 783.


There is no distinction as to right of state to regulate marriage and divorce between marriages performed in church by minister and those performed outside church by a judge, and thus this section was constitutionally applied to Christian marriage performed in church by a minister based on husband's testimony and court's finding that marriage had become insupportable because of discord and conflict of personalities and that there was no reasonable expectation of any reconciliation. Trickey v. Trickey (App. 2 Dist. 1982) 642 S.W.2d 47, dismissed.

It was intent of legislature to make decree of divorce mandatory when party to marriage alleges insupportability and establishes statutory elements, regardless of who is at fault, and as such, when dissolution of marriage is sought solely on ground of insupportability, evidence of fault becomes irrelevant as analytical construct and may not be considered by trial court in its just and right division of community estate. Phillips v. Phillips (App. 9 Dist. 2002) 75 S.W.3d 564.

Purpose of legislature in enacting this section was to abolish necessity of presenting sordid and ugly details of conduct on the part of either spouse in order to obtain a decree of divorce. Baxla v. Baxla (Civ.App. 1975) 522 S.W.2d 736.

It is not error for a Texas court rendering a decree of divorce to apply the no-fault divorce law of Texas although the marriage dissolved was celebrated in a sister state and the law of the sister state at time of marriage did not provide for no-fault divorce. Hopkins v. Hopkins (Civ.App. 1976) 540 S.W.2d 783.

In divorce suit, court did not err in applying new no fault divorce law (this section), despite contention that law in effect at time of marriage in sister state should be applied in determining right to divorce. Smitheal v. Smitheal (Civ.App. 1975) 518 S.W.2d 842, dismissed w.o.j., certiorari denied 96 S.Ct. 277, 423 U.S. 928, 46 L.Ed.2d 256.

In divorce suit, even if the court applied wrong law in determining whether husband was entitled to divorce, prejudicial error was not shown, where wife also asked to be divorced and urged grounds which were grounds for divorce under old law, court granted wife divorce and also granted husband a "no fault" divorce which also terminated marriage. Id.

Decree of divorce is absolute in Texas from its entry, unless set aside or appealed from, so that a provision in decree in Oklahoma, where it is not shown that the law of that state is to the contrary, that the decree shall not be absolute until six months after entry is of no effect in Texas. Vickers v. Faubion (Civ.App. 1920) 224 S.W. 803.

If you cannot afford an attorney, use our website Cheap Texas Divorce for your divorce.

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