This case law update focuses on Alvarez v. Alvarez, an April 2015 case out of the San Antonio Court of Appeals. Husband filed for divorce on the no-fault grounds of insupportability. Wife answered but failed to appear at the final trial setting. At the default prove-up, Husband failed to state grounds for divorce. Generally, he would say “The marriage has become insupportable due to discord or conflict of personalities that destroys the legitimate ends of the marriage relationship. And, there is no reasonable expectation of reconciliation.” (Or, his lawyer would ask him a question along those lines.) But, in this case, that question was not asked and the Husband never stated grounds for divorce and never said the word “insupportabiliy”. The Wife appealed the default judgment – the reason, insufficient evidence to support the granting of divorce.
The San Antonio Court of Appeals agreed with Wife and reversed the default judgment. They held that there must be some evidence of grounds for divorce. If divorce on the no-fault grounds of insupportability is requested, the party must provide evidence that 1) the marriage has become insupportable due to discord or conflict, 2) that discord or conflict destroys the legitimate ends of the marriage ; and, 3) that there is no reasonable expectation of reconciliation. Without this evidence, testimony that the parties are separate and living apart is insufficient to support the divorce.
The lesson to be learned here is to always ask all of the questions at the divorce prove-up, especially in a default trial. If you don’t know all of the questions to ask, find a script. Or, do what I did 20+ years ago when I was learning the ropes as a Dallas divorce lawyer, go sit and watch prove-ups at the courthouse and listen to as many as you need to until you have it memorized. Take notes, if you must. But, always do the prove-up right. It could cost you and the client time, effort, and money if you mess it up.
Alvarez v. Alvarez, 2015 WL 876863 (Tex App. – San Antonio 2015, no pet. h.) (mem. op.).