The majority of divorces in Texas each year are known as "No-Fault" Divorces. This means that the parties could no longer get along in the marriage and say no chance at reconciliation or getting back together. As a result, one of the spouses files the divorce paperwork and begins legally ending the marriage relationship. It's certainly not an ideal situation for anyone to go through, but many of these divorces are amicable, and their facts mirror many other divorces.
Every once in a while, there are divorces based on what is known as "fault grounds." These are legally recognized reasons as to why the Divorce has been filed. Infidelity/adultery is common among these fault grounds for when your spouse has been unfaithful to you, and your intention is to make that an issue in your Divorce. When most people consider a fault in the breakup of a marriage, infidelity/adultery is at the top of the list.
A less common, but no less critical, fault ground for Divorce in Texas is abandonment. If you're reading this blog post and have not seen or heard from your spouse in some time, then the information you are about to read maybe the most important thing you've read in years. Let's discuss the topic of abandonment and how it can impact a divorce should you decide to file.
Abandonment explained
If you are reading this blog and have children, a home, and responsibilities you are tending to without your spouse, you should know that you do have places to turn in this situation. Here you are by yourself, attempting to raise a family and manage a household all by yourself with no assistance from your spouse. Your frustration levels are mounting by the day, and at times, it can seem like there is no way out. What can you do?
Let's define the term abandonment so you can see what the legal definition of the word is. Abandonment is when a person deserts their spouse to end the marriage due to that desertion. As a result of this desertion, not only are you having to take on the household finances as an individual, but you have to raise children (if you have any) as a single adult. How does the abandonment affect a court's decisions regarding conservatorship of your child?
Conservatorship of your child in an abandonment divorce case
If your spouse thought it was a good idea to abandon you and your family, you can bet that a judge would not be too happy with your spouse's decision. Not only does it put you in a bind financially, but it limits your spouse's ability to parent your children and contribute to their well-being- both financially and emotionally.
To the emotional end, parenting responsibilities fall squarely on your shoulders. You are in a challenging position through no fault of your own and due entirely to the immature decision made by your spouse.
As a result, your judge would likely not consider awarding your spouse anything close to a typical, standard possession order type possession schedule. The reason is that the judge cannot trust them to moderate his behavior and act as a parent should in terms of the well-being and discipline of his children.
The default presumption of family law courts in Texas is that it is in the best interest of your children to have a meaningful relationship with both parents. Still, that presumption can be rebutted with sufficient evidence. Your spouse abandoning you and your family cedes ground to you in this area, making it unlikely they would have anything but extremely limited (possibly supervised) visitation and possession with your children.
The conservatorship has more to do with rights and duties to your children than it does time and possession of them. If your spouse has abandoned their family, it would be tough to argue that this same person would be willing and able to provide the sort of stability that is in their best interests. Consider the emotional and physical needs of your child. Who do you think a judge would believe could provide better in those areas- you or your spouse who skirted all responsibility in abandoning you?
You would likely be able to argue for and be awarded the sole right to make decisions about educational, psychiatric, and medical needs for your children in your Divorce.
While this may not strike you as overly necessary at first compared to visitation and possession, the right to make these decisions will have as lasting an impact on your children as the time aspect of parenting, in my experience. Where your child attends school, the classes they take, the counseling they receive, and on and on are what this means to you and your family.
Abandonment and Divorce explained.
One of the main reasons you do not see many divorces granted in Texas-based upon fault grounds is that the circumstances leading to a court agreeing to one are minimal. As we stated earlier in this blog post, most divorces in Texas are no-fault.
To successfully argue that your spouse had abandoned you and thus caused you to have to file for Divorce, you must be able to show that your spouse has been absent for one year or more. Additionally, suppose you cannot show a judge that the abandonment was initiated to force you into caring for yourself. In that case, the court will not accept the abandonment allegations.
Dividing up the marital estate in a divorce based on abandonment
As you probably know, Texas is a community property state. This means that (with some exceptions) any income or property that you or your spouse come into during the marriage is considered jointly owned by both of you. If a divorce follows, that property will have to be divided just and adequately by the judge. And right typically means something close to 50/50 between you and your spouse.
The abandonment issue can be a factor that leads a judge to award a disproportionate (unequal) share of the community property estate to you. The reason is that your spouse's bad behavior in abandoning you and your family can help tip the scales in the judge's mind toward you and away from your spouse. You have lost your spouse's income to provide for yourself, and awarding "extra" property to you would help even up the score.
Spousal maintenance and abandonment in Texas
Judges in Texas, under most circumstances, are not quick to award spousal maintenance upon the conclusion of a divorce. If you ask for temporary spousal support, this is more likely to be awarded though you need to show that you cannot provide for yourself and any children in your care based on your income to have it awarded to you.
At most, twenty percent of your spouse's monthly net income can be captured for spousal maintenance purposes. There are limits to how long spousal support can be awarded to you, typically lasting no longer than two years from the day of your Divorce.
Most people who get divorced in Texas do so based on what they view as a serious problem in their relationship with their spouse. The problem could be based on money fights, emotional insecurity, issues with their children, and a host of topics in between those subjects. However, there are also specific grounds that a person like yourself could cite in your original petition for divorce when you are filing your case. These are called fault grounds and can have a profound impact on your divorce moving forward.
Texas was a state like most others for many years where you could only get a divorce granted by a family court judge if you specified a specific fault ground in your original petition for divorce. This means that you needed to have had a specific reason or cause for your divorce to be necessary. In the past 50 or 60 years that changed in Texas, Texas has joined every other state in the country as a place where you can get divorced for no specific reason at all. This is known as a no-fault divorce.
A no-fault divorce does not require you to specify a specific action or circumstance to base your divorce. Rather, all you need to say is that you and your spouse have a discord or conflict and personalities that are irreconcilable and lead you all towards divorce. You all have attempted to work through some personality differences and have concluded that your marriage cannot be salvaged. As a result, you and your spouse need to get a divorce based on this circumstance. Thinkers, politicians, and observers of our society have weighed in on no-fault divorces for many years. Each side of the coin has presented arguments as to why or why not fault divorces are a good or bad thing.
My purpose in today's blog post is to not weigh in on whether or not a no-fault divorce is a good or a bad thing. I would, however, like to share with you some thoughts on a specific fault ground for divorce. The fault ground that we are going to discuss in today's blog post is abandonment. Depending on your upbringing in the circumstances growing up, you may have never come face to face with a situation involving abandonment at all. Hopefully, this was the case. However, the circumstances involving abandonment may be more common than you would believe and impact people divorcing in Texas daily.
What is abandonment in conjunction with a Texas divorce case?
Before discussing abandonment as it pertains to a Texas divorce, we first need to define what abandonment is. If you are in a circumstance where your spouse left you, your children, and your home without displaying an intent to return at any point in the future, then it may be the case that they have abandoned you and your marriage. If you provided them with permission to leave or asked them to leave, this would negate an argument that abandonment has a curd in your marriage. For example, throwing your husband out of the house for any reason does not necessarily negate every ground for divorce, but it does negate the grounds of divorce for abandonment.
There needs to be an extended period of absence by your spouse from your home. For example, if you were to get into an argument with your spouse and he chose to leave for the weekend and then returned, it is unlikely that this could be classified as an abandonment situation, at least as it pertains to a Texas divorce case. Most typically, a period of one year or more of abandonment needs to be in place for this fault ground to be considered seriously by a Texas family court judge.
Part and parcel with an abandonment claim are that the failure to support the other spouse occurred due to the abandonment. If your spouse were to leave your home but were making periodic payments into your checking account so that you could buy groceries, support your family, and otherwise provide for yourself, then your abandonment argument would not be as strong as it would have been had these payments not been made. The state of Texas requires that spouses support one another from a financial perspective. The way that your family supports you may be unique to you and your circumstances. However, the court will try to apply a much more objective measure when and if the issue of abandonment is presented to the judge.
How do abandonment and trial separation differ from one another question mark?
Abandonment is not the same thing as telling your spouse that you will be attempting a trial separation or something of that sort. First of all, Texas does not honor legal separations or anything like that. Many states do, but Texas does not. Abandonment has more permanency to it where there is no attempt to reconcile or attempt to work through any problems in the marriage. Rather, abandonment is done with the intent not to return or at least not return for an extended period.
If your spouse were to attempt to argue that they were under the impression that you all were attempting at trial separation, it would be much more likely that a judge would need to be shown proof that measures to save the marriage, such as frequent conversations, attempts to attend counseling virtually or things of that nature were done the first period otherwise, a separation with no intent to reconcile can take on the look of abandonment rather quickly.
Seeking the moral high ground in asserting abandonment.
Often in a divorce, you may find yourself in a circumstance where you are attempting to argue that your spouse acted unjustly and that you were harmed as a result. And abandonment circumstances could be one of those times where it would be fairly easy for you to present an argument like this. For instance, the abandonment may be one where you felt emotionally abandoned, if not financially or abandoned. By telling a judge that your spouse abandoned you, you may be attempting to assert the high ground from a moral standpoint and show that your spouse was wronged.
There is nothing wrong with this, but I will caution you that fault grounds can be difficult to prove even if they appear to be straightforward to you. I always recommend that people in your position speak to an experienced family law attorney before prolonging their case over an issue like abandonment that has little chance of success. Many times folks will stick with a strategy to prove something like abandonment to their detriment. If you plan to assert grounds for abandonment at the beginning of a divorce, I would recommend speaking to your attorney about that as soon as possible to gauge whether or not your chances of success are high. If not, it may be in your best interest to move along in your case and focus on stronger or more beneficial aspects for you and your family.
Another issue to keep in mind is that if you and your spouse continually seek to reconcile with one another, then each attempted reconciliation will start the Clock back over as far as abandonment is concerned. This means that if during the time your spouse was gone, they did attempt to reconcile with you somehow, then your position may not be as strong as you would like regarding abandonment. Keep this in mind when you present this as a possible fault ground for your divorce case.
What about issues with mobility and moving for work purposes?
The past year has shown that many of us are fortunate enough to get work done from different places across the globe. Mobile workplaces in remote employment may not be the norm. Still, they certainly aren't as uncommon as they used to be if you find yourself in a position where you need to move for work, but your spouse does not want to, that may have you thinking more along the lines of abandonment as an issue for your family to be facing.
For instance, let's suppose you are transferred from The Houston area to San Antonio. Both sides of the family are in Houston, and the only reason to move would be for work period now; I believe this is a pretty good reason for a move, but the question we need to be asking ourselves for today's blog posts is whether your spouse's unwillingness to move for your job would be considered to be abandonment. Based on my understanding of the law in my experience, I do not believe that a family court judge would find your spouse has abandoned you if they do not move with you to San Antonio for your job.
What about issues with cruelty in the marriage and abandonment based on that cruelty?
Another situation that may be relevant to your divorce is abandonment as a part of cruel treatment at home. For the record, cruelty is another fault ground for divorce. I'm interested in talking about this subject from the perspective of your Spouse abandoning you due to their cruel treatment towards you. Basically, what if you leave your marriage because your spouse is made it intolerable for you to stay due to their actions.
this would be an interesting situation to present to a family court. You would argue that your spouse effectively abandoned you due to their cruel treatment and therefore forced you to leave the marriage as a result. If they continue to act cruelly even from afar and fail to support you, this could be a potential claim for abandonment even if you were the one to leave your spouse physically. However, I would work with an experienced family law attorney before attempting to present a situation like this to a court in Texas.
What constitutes a divorce in Texas?
As a young attorney who began practicing family law years ago, I will be honest when I say that I was shocked to see how many people in our community get married and then decide one day to stop living with their spouse and make no effort to reconcile the marriage or get divorced. Folks would come into our office for a free-of-charge consultation and talk to me about living separately from their spouse for a few years or even longer. At first, this seemed bizarre, and in many ways, it still does to me.
What makes it less bizarre, I suppose, is how frequently these situations seemed to arise. From what I can tell, many people who separate themselves from their spouse physically seemed to believe that a divorce results from his physical separation. Maybe the assumption is that once you are physically separate or living in a different residence from your spouse for a certain period, the people involved assume that their marriage is over. Almost like these folks have entered into a de facto divorce even though no such thing as a Kurd through a court system.
I will take this moment to tell you that there is no divorce like this in Texas. The reality is that unless you file an original divorce petition and follow the legal steps of getting a divorce in Texas but you are not divorced under Texas law. Again, there are many ways to go through a divorce in different ways to assert that a divorce is necessary before the court. We have spent the better part of today's blog post discussing how abandonment is one of those grounds for divorce that could be specified in your original petition. You must, however, make use of a fault ground or make use of a no-fault divorce to get divorced.
As I mentioned earlier in today's blog post, Texas does not honor legal separations. This means that you cannot be legally separated in Texas. While it is true that you can live separately from your spouse while you were married, this does not change the nature of your marriage. You could be living in Texas, and your spouse could be living in Alaska, but as long as you are still married, it doesn't change a thing. One of you would have to file for divorce in Texas and have the Texas court assumed jurisdiction over your case. Otherwise, you will remain married no matter the circumstances of your case or how long you have lived separately from your spouse.
The same would be true for you in an abandonment situation. You may feel like you have been taken advantage of by your spouse and that as a result, you have nowhere to turn Anne nothing can be done for you in your situation. However, I would tell you that if you want to get divorced, you need to file for divorce to get that process started. Even if you cannot locate your spouse at this time, you can work with an experienced family law attorney to define them. By all means, however, do not move on with your life and assume that no legal responsibility would be attached to either of you in the future.
An example of why you should be diligent about seeking a divorce no matter what the circumstances are with an estranged spouse would be that potentially your spouse could incur legal obligations that you become responsible for if you get divorced. For instance, your spouse could end up incurring debt on a business or on a personal level that becomes a part of the community estate given, but you all are still married. I'm not going to tell you that it is likely that you would become responsible for these debts in the event of a divorce, but a creditor can begin looking at your paychecks or property as a means to pay a debt that your spouse has failed to make payments on.
In closing, the best recommendation I can give you is to be diligent and intentional when moving forward with the divorce. Whether or not you have grounds to file for divorce based on abandonment is one thing but if you need to get a divorce because you and your spouse have been separated for many years with no intent to reconcile is a matter that needs to be seriously looked at by you even if you don't feel like there is anything on fire in your life that can change at a moment's notice depending on your circumstances and those of your spouse.
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Other Articles you may be interested in:
- When is Cheating Considered Adultery in a Texas Divorce?
- Frequently Asked Questions About Uncontested and No-Fault Divorce
- Dividing Property in a Texas Divorce - The Just and Right Division
- Why is Separate Property Important and How to Keep it Separate in a Texas Divorce?
- What Wikipedia Can't Tell you About Texas Divorce and Marital Property Division
- Texas Divorce Property Division Enforcement
- Separate Property in a Texas Divorce?
- Does it Matter Whose Name is on Title or Deed of Property in a Divorce in Texas?
- Is Social Security Considered Separate Property in a Texas Divorce
- Business Owners and Business Assets in a Texas Divorce
- What to do when your divorce decree does not include a marital asset?
- High Net Worth Divorce / High Asset Divorce
- How To Get Your Husband To Leave The House In Texas
- What are the grounds for divorce in Texas?
