In Texas, abandonment is a fault ground for divorce. When you get divorced based on a fault ground you have alleged and proven a specific reason for your divorce. This is as opposed to a no-fault divorce. In a no-fault divorce, you allege no particular reason for the divorce. Rather, you ask the court to end your marriage due to discord or conflict of personalities. Either way, you can get divorced in Texas. However, there are advantages to proving a fault ground for divorce.
In today’s blog post from the Law Office of Bryan Fagan, we will discuss how to obtain a divorce based on the fault ground of abandonment. Any questions you have about the information contained in this blog post can be addressed to one of our experienced family law attorneys. We serve people just like you across the state of Texas. Is abandonment an issue you are concerned with? Read on and then contact one of the attorneys with the Law Office of Bryan Fagan.
What does abandonment mean in Texas divorce law?
For abandonment to be a valid ground for divorce your spouse must have abandoned you for at least one year. The intent of your spouse must also have been to not return after leaving your marital residence. Let’s break this situation down into details that we can understand. First, abandonment does not mean that your spouse has taken a job overseas for a year with the intent to return. Rather, if your spouse chooses to live elsewhere then that must come with an intent to not return to your home.
Proving intent can be a challenge. Being able to discern the intent of another person is not easy. This is true even when the other person is your spouse. Looking at the case you will need evidence to put your best foot forward. Alleging a fault ground for divorce is one thing. However, it is an altogether more difficult process for you to prove a fault ground like abandonment. Introducing evidence into the record takes practice. This is not something that you can easily learn.
Working with an experienced family law attorney is a great way to proceed. If you have been abandoned by your spouse, you will want to find a way to get your divorce started. There are complicating factors involving notifying your spouse of the divorce that we have not discussed yet. For these reasons, an attorney with the Law Office of Bryan Fagan is an especially attractive choice for you to consider. Contact us today for a free consultation.
What type of evidence is helpful in a divorce based on abandonment?
Testimony is important when you are attempting to prove abandonment. Testimony means when you or another person answer questions in a trial or hearing. That testimony becomes evidence for a judge to consider. For example, what if you were able to track down a dozen people who can testify to your spouse moving to their city for work? That your spouse purchased a new home, never mentioned you and seemingly had no intention to return to you would certainly help your case. An attorney can help you both track down these witnesses and help their testimony remain admissible evidence.
Next, documentary evidence can be utilized in this situation. Imagine a scenario where your spouse has moved out of your home. He left Texas to join a religious group in Florida. It is well known that this religious group requires complete adherence to its rules. One of their rules is that your spouse must reside in a dormitory on the grounds of the church. Obtaining a sample agreement for the organization would help to prove that if your spouse is devoted he needs to have committed to remaining in a dormitory.
Finally, communications with you can be used as evidence in this case. For example, consider what would happen if you had text messages from your spouse that showed his intent to remain living away from home. Text messages are an increasingly important type of evidence in family law cases. However, to take full advantage of these text messages you must be able to offer and admit the texts into evidence. An experienced family law attorney can help you.
What is the first step in filing a divorce based on abandonment?
Before we get ahead of ourselves it is helpful to point out where you begin a divorce case. Like a no-fault divorce, the first step in a fault grounds-based divorce is to file a petition. A divorce petition is the introductory document filed in your case. In a divorce petition, you are introducing the court to your situation. Any children under 18 you have with your spouse, requests for relief, and other tidbits of knowledge should go into your petition for divorce.
Keep in mind that your spouse may want to file their petition. When your spouse files a petition it is known as a counterpetition. Their petition is countering your petition. As you would imagine, your spouse can make her requests and state her fault grounds in this counterpetition. The key to understanding this entire discussion is that your spouse must have first received information regarding your petition having been filed.
This is the crucial point that we need to discuss what happens if your spouse cannot be located. After all, if you are alleging abandonment in your divorce petition then there is a distinct possibility that your spouse has been secretive with you. As a result, consider that it is likely that finding your spouse will be a challenge. In a circumstance like this, you must have a plan on how to move forward.
Alternative Methods of service in an abandonment-divorce case
As we alluded to just a moment ago, it is important to provide your spouse with notice of your divorce having been filed. If you cannot provide him or her notice, then your case is stuck in the mud. For that reason, the attorneys with the Law Office of Bryan Fagan wanted to spend some time with you here today. This way we can provide you with some knowledge on how to handle this situation efficiently and fairly.
For starters, you need to look into the whereabouts of your spouse. For a court to allow you to provide notice by a method other than by personal service there must be a record of due diligence having been shown. Due diligence starts with making a concerted effort to track your spouse down. Shrugging your shoulders is not a concerted effort. Rather, making an effort to locate your spouse looks more like contacting relatives and friends. Hiring a private investigator is not out of the question.
Once you have attempted to locate your spouse with sufficient diligence, file a motion for substituted service. There are multiple, valid methods to serve a person who has been sued. Examples of alternate service methods include service by publication, posting on the courthouse steps, and service by certified mail. An experienced family law attorney can help you plan this stage out. An attorney being on your case is also a good indication to a judge that you are actively trying to serve your spouse.
What good does proving abandonment do for you in a divorce?
When it comes to proving a fault ground like abandonment in your divorce there are a range of reasons why you would want to go through the effort. For starters, it is not unreasonable to assume that there is no difference between the two types of divorces. After all, they start the same as far as a petition and answer being filed. From there, mediation, discovery, and other steps are a part of the case. A Final Decree of Divorce contains the final orders in your divorce in both cases.
However, there are significant differences between a no-fault divorce versus a fault-based divorce when it comes to the subject of property division. As you may know, Texas is a community property state. Community property is subject to division in your Texas divorce. The presumption is that a just and right division means the property being divided down the middle. However, in a divorce based on fault grounds, a disproportionate share of the community property is possible.
What does this mean for you on a practical level? For one, you can win more than half of your community property in a situation like this. Being the innocent spouse has its advantages despite the undesirable position of having been abandoned. Part of that is the possibility of receiving more property than you would have. Talk to an experienced family law attorney with the Law Office of Bryan Fagan to learn more about his very important subject.
How does spousal support work in connection to abandonment and divorce?
Many of us are familiar with the concept of alimony. We hear about alimony from television and movies involving rich and powerful people. As a result, it may surprise you to learn that alimony is relevant in the lives of regular people just like you and me. The major difference between Texas and other states is how we handle post-divorce spousal support here. In Texas, post-divorce spousal support is known as spousal maintenance. It can only be ordered by a court.
For the record, there is another type of post-divorce spousal support known as contractual alimony. However, contractual alimony is negotiated between spouses and that is not relevant to this discussion today. As a result, we will discuss how your chances of being awarded spousal maintenance increase as a result of abandonment. There are strict requirements in Texas for the awarding of spousal maintenance.
When a fault ground such as abandonment is present that increases your likelihood of being awarded spousal maintenance. Typical requirements for the awarding of spousal maintenance include being married at least ten years and displaying an inability to meet your minimum, financial needs without the maintenance. Assuming that both of these elements are in place the abandonment can truly tip the scales in your favor.
What if you lack the evidence necessary to prove abandonment as a fault ground?
There is not always going to be ample evidence available to prove abandonment. Unfortunately, sometimes you may well have been abandoned but the evidence available does not tell a court that with a high degree of certainty. As a result, your chances of being successful in your fault grounds-based divorce may be negligible. When you find yourself in this situation is there any direction you can go?
Remember that if a fault grounds-based divorce is not available then a no-fault divorce would be available. A no-fault divorce allows you to say that discord or conflict in personalities led to the divorce. This means that you can get divorced in Texas for no other reason than you do not like the way that your spouse chews their food. That may be a silly example to give but it is not untruthful. Rather, minor indiscretions can lead to a divorce.
Before you give up hope on being a full grown for divorce please contact the Law Office of Bryan Fagan. We have experienced family law attorneys who can help you learn more about the process involved with proving a fault ground for divorce. Our office knows how to serve clients who are attempting to prove a fault ground for divorce. When you meet with one of our attorneys, we can help you learn more about the circumstances that fall in your case as well as your likelihood of success.
How can abandonment impact any child custody determinations?
Another important element of many divorce cases involves child custody. Your children below the age of 18 fall within the jurisdiction of the court. This means that your kids are going to have their lives impacted by your family’s circumstances, including that of abandonment. If your spouse abandons not only you but your minor children that will have an impact on the child custody determinations. Abandoning your family shows poor judgment, to say the least. It is against this backdrop that decisions would be made related to child custody.
The best interests of the child standard is what matters most in decision-making regarding your children. This standard attempts to incorporate several different factors when it comes to decision-making for your child. It is presumed, first, that it is in the best interests of your child that he or she has a relationship with you and your co-parent. This presumption is facilitated through favoring joint managing conservatorships in family law cases. Joint managing conservators of children make decisions together and share rights and duties.
However, abandoning your family casts serious doubt on your co-parent’s ability to care for your children. Working with an experienced family law attorney with the Law Office of Bryan Fagan can help you perform better in your divorce case. When your spouse leaves you he or she is also leaving your family. The idea of having your spouse continue as a joint conservator of your children may be disheartening. Working with one of the attorneys with the Law Office of Bryan Fagan can provide you with peace of mind that the correct decision will be made for your children.
Final thoughts on abandonment as a fault ground in Texas divorces
When you have been abandoned by your spouse it becomes easier to imagine being abandoned by others. However, now is the time for you to lean on your support system. Find friends and family who are willing to be there for you. Providing you with stability in a time of unease is what family and friends are for. Talk to those around you. Do not expect to be able to maintain this case all on your own.
Additionally, consider what goals you have for your case. Getting divorced is an obvious goal but there are several other aspects to consider. How do you want to get divorced? Is there evidence to suggest that you have been abandoned? How important is it to you that this fault ground is proved in the divorce? Only you can make that determination, ultimately.
Finally, what sort of legal advice do you want to have in the case? Some attorneys are willing to accept your retainer only to leave you wondering about your case. The attorneys with the Law Office of Bryan Fagan are with you every step of the way in your divorce. We do not sign up a client and leave them to blow in the wind. We take an active and involved role in your case from day one. Our attorneys serve clients with the heart of a teacher and are proud to do so.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
The attorneys with the Law Office of Bryan Fagan offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law. Before signing a document or negotiating on a subject you do not know well, contact our office. We look forward to the opportunity of serving you during an important part of your life. The Law Office of Bryan Fagan is on your side.
Evan Hochschild was raised in Houston, TX and graduated from Cypress Creek High School. He went on to graduate from Southwestern University in Georgetown, TX with an undergraduate degree in Political Science. While in college, Evan was a four-year letterman on the Cross Country team.
Following in the footsteps of his grandfather and uncle before him, Evan attended law school after he completed in his undergraduate studies. He graduated from St. Mary’s University School of Law and has practiced in a variety of areas in the law- including family law.
Mr. Hochschild is guided by principles which place the interests of clients first. Additionally, Evan seeks to provide information and support for his clients with the heart of a teacher.
Evan and his wife have four small children together. He enjoys afternoons out and about with his family, teaching Sunday school at his church and exercising. A veteran attorney of fourteen years, Mr. Hochschild excels in communicating complex ideas in family law simply and directly.
