What is Abandonment in a Texas Divorce?
The State of Texas has established laws concerning the abandonment of marriage as one of seven main reasons for divorce in Texas. Abandonment is one of the more difficult cases to prove, but in situations where the Court decides that the spouse is convicted of abandonment, it may be worth contesting. But before we discuss the top of abandonment, you have to understand the basics of a fault and no-fault divorce.
Texas Family Code Sec. 6.005. defines ABANDONMENT. The court may grant a divorce in favor of one spouse if the other spouse: (1) left the complaining spouse with the intention of abandonment; and (2) remained away for at least one year.
Fault vs. No-Fault Divorce
Both fault and no-fault divorces are legally supported in Texas. The no-fault option essentially means that the marriage is unbearable. Most divorces in Texas are considered no-fault divorces, which means that both parties agreed to divorce based on their inability to sustain the marriage. In many ways, claiming insufficiency is simpler. If you assert a fault ground, such as abandonment, the judge must determine whether the ground actually exists. This can be time-consuming and financially challenging.
If you choose no-fault divorce, the mere fact that you want a divorce is usually sufficient.
What Is Considered Abandonment in a Texas Divorce?
Abandonment can become grounds for divorce if your case meets the following two requirements:
- Your spouse left with the intention to abandon you
- Your spouse stayed away for at least a year
As a result of desertion, not only are you having to take on the household finances as an individual but you are having to raise children (if you have any) as a single adult. This can be proved especially difficult when the spouse leaves with no notice and if the other spouse does not have a job or does not make enough to support the rest of the family. However, you need to prove that your spouse left with the intent to abandon you. If your spouse is away for work for 2 years but intends to return, then you have not been abandoned under the law.
Just leaving is not enough. The intent to leave you for good must also be there.
Seeking an Abandonment
In Texas, a spouse seeking an abandonment divorce must inform the other spouse as well as provide copies of all paperwork, including the complaint and any proposed property settlement or parent – child plan, to the other spouse.
This is known as “service of process” and is usually done by a constable, sheriff, or private process server. A divorcing spouse may also personally serve the other party by handing them a copy of the summons and divorce complaint. The court will not grant a divorce unless process is served.
The primary reason for seeking an abandonment divorce is to receive more marital property. Texas is a “community property” state, which means that a couple’s marital property is automatically divided 50/50, regardless of who bought or paid more for it.
However, Texas law allows a judge to deviate from this 50/50 split if the couple has engaged in marital misconduct. Abandonment is one type of marital misconduct, so if you can prove your spouse abandoned you, you may be entitled to more community property.
The reason for this is that your spouse’s bad behavior in abandoning you and your family can help tip the scales in the judge’s favor and away from your spouse. You have lost your spouse’s income as a means of supporting yourself, and granting you “extra” property would help even the score.
Unfortunately, a judge is not obligated to grant you additional property. It is ultimately up to the judge.
So you may find that you have waited a year to file for an abandonment divorce in Texas only to receive the same amount of community property as if you had filed for a no-fault divorce.
Does Abandonment Affect Child Custody?
This varies depending on the circumstances. Texas judges start with the assumption that both parents should maintain ongoing contact with their children. However, if your spouse has abandoned you and your children, a judge may disregard this presumption. However, if it is determined that one spouse has abandoned both you and your children permanently, custody may be granted to the parent who was left to support the child.
Of course, you don’t have to go through a fault-based divorce to show a judge that your spouse has abandoned the family. You could still file a no-fault divorce, but you’d have to bring up the abandonment during the child custody portion of the divorce.
Can My Wife Move Out Before the Divorce is Final?
Moving out of your home can have a number of consequences for your divorce. First, it can set a date for separation. Moving out can be interpreted as an official separation. This is significant because the date of separation will be considered by the courts when determining community vs. separate property.
Moving out will not jeopardize your claim to the family home. Moving out does not imply that you are giving up your home in the divorce. The courts will divide property in accordance with what is fair and equitable in the circumstances.
Finally, moving out could or might not have an effect on child custody. If you were forced to leave due to domestic violence, the courts will take this into consideration. Otherwise, it is critical to develop a parenting plan with your estranged spouse, as well as a written agreement that such parent who moves out does not forfeit any parental rights. This can help ensure that your relocation does not disrupt child custody or visitation.
Can you divorce for emotional abandonment?
When discussing abandonment as grounds for divorce, physical abandonment is often prioritized, but emotional abandonment can also be a factor. Emotional abandonment occurs when one spouse has lost all interest in the other spouse.
For example, if one spouse has become so addicted to drugs that they are no longer able to be emotionally present for their spouse, they may be seen as having emotionally abandoned the marriage. If you believe your spouse has emotionally abandoned you and your family, consulting with an attorney about your options may help you resolve this situation in your favor.
Texas Abandonment Divorce Lawyer
If you have any questions about the topic that we have just covered, please check out this Best Houston Divorce Attorneys post. Family law attorneys offer consultations that are free-of-charge at our office or over-the-phone. With a consultation, you experience a great opportunity for asking questions and receiving feedback about your circumstance. We hope to hear from you with any questions you may have.