In Texas, a criminal conviction can have significant consequences during a divorce proceeding, especially when it comes to fault grounds, child custody, property division, and spousal maintenance.
Spouses who are going through a divorce will have the right to argue that character matters in a wide range of divorce issues. Generally, the strongest evidence of bad character is that someone has been convicted of a crime. Being charged with a crime may be especially relevant if the charge relates directly to the divorce issues – such as domestic abuse or child abuse charges. The ability to use conviction records and charges varies depending on the type of divorce action – the divorce itself, child custody, spousal maintenance, and other family law matters.
Criminal Conviction and Divorce
Below are the main ways a criminal conviction can affect a Texas divorce filing:
🔷 1. Grounds for Divorce (Fault-Based Divorce)
Texas allows divorces based on both no-fault and fault grounds. A criminal conviction—especially for a felony or violent offense—may be used as a fault ground, which can influence the outcome of the divorce.
Fault Grounds Related to Criminal Convictions:
- Cruelty: If one spouse is convicted of abuse, violence, or cruelty toward the other, it can justify a fault-based divorce.
- Felony Conviction:
- The convicted spouse must have been sentenced to prison for at least one year.
- The conviction must have occurred during the marriage.
- If they are not pardoned, this serves as grounds for divorce under Texas Family Code § 6.004.
Effect: A spouse who proves fault may receive a larger share of the marital estate and may have stronger grounds for custody restrictions or protective orders.
🔷 2. Child Custody and Visitation (Conservatorship)
A criminal record—especially for crimes involving violence, drugs, sex offenses, or child abuse—can greatly influence custody decisions.
Key Factors Considered:
- Nature of the crime (e.g., domestic violence, child endangerment, sexual assault)
- Length and recency of the conviction
- Rehabilitation or risk of future harm
Possible Court Outcomes:
- Sole managing conservatorship granted to the non-offending parent
- Supervised visitation for the convicted parent
- No visitation or termination of parental rights in extreme cases
Texas Family Code § 153.004 presumes that awarding custody to a parent with a history of family violence is not in the child’s best interest.
🔷 3. Property Division (Community vs. Separate)
Texas law requires a “just and right” division of marital property. Criminal behavior—especially if it causes financial loss or emotional harm—can influence how property is divided.
Examples Where Criminal Conviction Affects Property Division:
- One spouse uses community funds to commit crimes or pay legal fees
- Convicted spouse’s actions lower the value of marital assets
- Victim spouse can show emotional trauma or economic hardship
The court can award the innocent spouse a larger share of the community property as compensation.
🔷 4. Spousal Maintenance (Alimony)
Spousal support is not guaranteed in Texas but may be awarded under certain circumstances. A criminal conviction—especially for family violence—directly affects eligibility.
When Spousal Maintenance is Mandatory:
- If the paying spouse is convicted (or receives deferred adjudication) for family violence against the spouse or child within:
- 2 years before the divorce filing, or
- During the divorce process
- Then, the court must award maintenance if the receiving spouse qualifies.
Other Relevant Factors:
- Length of the marriage (generally 10+ years required unless abuse is present)
- Financial needs and disabilities
- Education or employment prospects
A spouse convicted of abuse often cannot escape paying maintenance, even if other criteria aren’t met.
🔷 5. Protective Orders and Domestic Violence
If the crime involved domestic violence, the victim spouse can request a protective order. This civil order has major implications for the divorce:
Protective Orders May Include:
- Restricting the abuser from entering the family home
- Prohibiting contact with the spouse or children
- Forcing the abuser to attend counseling or anger management
- Temporary custody restrictions
Protective orders may last up to 2 years, and violations can lead to additional criminal charges.
🔷 6. Divorce Procedures When a Spouse is Convicted or Incarcerated
Even if one spouse is in jail or prison, the other spouse can still file for and complete a divorce.
Process Considerations:
- The incarcerated spouse must be served with legal papers, just like anyone else.
- If they fail to respond, the court may issue a default judgment.
- If the incarcerated spouse responds, they may participate by written statement, or possibly by phone or video depending on the prison’s cooperation.
Incarceration does not prevent the divorce from moving forward.
🔷 7. Impact on Divorce Timeline and Outcome
- A conviction during the divorce may slow down the process due to court delays, criminal sentencing, or unavailability of the convicted party.
- The court may also delay final judgment if the outcome of the criminal case could affect division of property or parental rights.
✅ Summary: What to Document in a Divorce Filing
If your divorce is affected by a criminal conviction, it’s essential to document:
- Case number, charges, and conviction details
- Length and location of incarceration (if applicable)
- Impact on finances, safety, or parenting
- Any protective orders or police reports
