El Paso Court: No Fault-Based Property Division?

In a puzzling opinion, Chafino v. Chafino, the El Paso Court of Appeals appears to have limited the extent to which a court may consider fault in the breakup of a marriage in dividing the parties' community estate. 

Ms. Chafino sued her husband for no-fault divorce ("insupportability") as well as for divorce on the grounds of adultery and cruelty.  At trial, Mr. Chafino denied adultery, but Ms. Chafino's private investigator videotaped Mr. Chafino entering a room at a local Motel 6 with a woman not his wife.  Three hours and twenty minutes passed before the couple emerged.  Mr. Chafino's paramour was subpoenaed to court where she admitted the affair.  She testified that Mr. Chafino had not informed her that he was married.

The trial court awarded Ms. Chafino 70% of the community estate, but Ms. Chafino appealed, arguing unsuccessfully that the trial court should have awarded her even more of the community estate given Mr. Chafino's misconduct.  At this point the El Paso Court said:  "In a fault-based divorce, the court may also, in making a disproportionate division, consider the conduct of the errant spouse."

The Court's opinion does not say whether the trial court granted the Chafino divorce on a fault ground or on insupportability, but nearly all divorces in Texas are granted based on insupportability even when a fault-based ground is proved at trial.  The Court does suggest, by its choice of language, that a spouse must plead and prove a fault-based ground for divorce if the trial court is to take account of fault in the property division.

If this is what the Court meant to say, then its holding departs from the many Texas cases that hold that fault in the breakup of the marriage may be considered in dividing the community estate even when no fault-based ground for divorce is pled.  Nevertheless, the Beaumont Court of Appeals, in Phillips v. Phillips, did hold that fault cannot be used as a factor in dividing the community estate when a "no-fault" divorce is sought.

What do we learn from these cases?  If the opposing party is at fault, then the divorce petition should allege both fault and no-fault grounds for divorce.  Fault in the breakup of the marriage should be specifically pled as a ground for property division.  The trial court should be encouraged to grant the divorce based on fault grounds or at least make findings of fault on the part of the other spouse.  Otherwise, the trial court might be foreclosed from considering fault in the property division.