You are able to get a divorce in Texas for any reason under the sun- or none at all. I like to tell potential clients who come into the Law Office of Bryan Fagan, PLLC for a free of charge consultation that you can divorce your spouse for something serious, like domestic violence, or something less than serious, like how he or she chews their dinner. Whatever the reason if you want a divorce and follow the basic procedures of the case you will get divorced without too much fuss.
With that said, one of the reasons that you can get a divorce in Texas is called abandonment. The term itself is pretty straightforward but what actually goes into abandonment under the Texas Family Code requires a bit more of a discussion. Today’s blog post from the Law Office of Bryan Fagan, PLLC will cover this subject- namely, how to get a divorce based on willful abandonment of you by your spouse.
What you should know going into your divorce about fault based divorces
As far as the mechanism for starting a divorce case in Texas, “fault based” divorces are increasingly rare. Fault based divorces refer to the stated fault grounds in the Texas Family Code that make up the basis for divorce in Texas. Things like adultery/infidelity, abuse/violence and abandonment are a few of those that are listed in the Code. In particular abandonment is one that does not come up very often from my experience. However, if it is a reality for you and your life then you have come to the right place. We are going to spend some time walking you through this issue that you can understand whether or not you find yourself in a situation where you have been abandoned by your spouse.
If you find yourself having to care for children after your spouse has left you high and dry this isn’t a time to sit back and take a great deal of time to worry. Yes, you are in a precarious spot and you do need help. However, worrying will not get you anywhere productive. Learning about your circumstances and finding an attorney who can assist you and your family is what is likely in your best interests.
How does the Texas Family Code characterize abandonment?
If your spouse has left your martial home with no intent of returning to you then this is legal abandonment for the purposes of a divorce in Texas. While it is a good thing that your spouse has ceded conservatorship and custody rights of your children to you by leaving your home, it puts you in a position where you are likely having to care for and provide for the kids on one income. This can be extremely difficult to manage as you are likely finding out.
When you file for divorce your spouse has no legs to stand on in terms of asking for primary conservatorship rights of your children. This means that you are going to be able to ask for and receive the right to determine the primary residence of your children as well as receive child support. The basis for this is that if the judge has to make a determination of what is in your children’s best interests and abandonment rules that person out as better suited to care for the children primarily than you are.
How abandonment plays into your divorce
Now that we know what abandonment actually is, we can begin to consider its impact on your divorce as a whole. You are not able to file for divorce based on abandonment except in limited circumstances. It is not easy to do so and as a result most divorces in Texas are based on no fault grounds. This basically means that you and your spouse could not get along well enough to sustain a marriage and that there is no chance at a reconciliation.
Your spouse must remain out of the picture and out of your life for at least one year consecutively in order to qualify for abandonment grounds in your divorce. The other tough part of meeting the abandonment standard is that you must be able to show a judge that the abandonment occurred in order so that you would have to provide for yourself without your spouse’s financial support.
A good plan of attack for a divorce based on abandonment is to use that year long period to file a Suit Affecting the Parent Child Relationship in order to have orders already in place for the payment of child support and a division of conservatorship and custody rights, duties and time.
The true benefit of filing for divorce based on abandonment comes in dividing up your marital estate
Texas is a community property state. This means that any property that you or your spouse acquired or earned during the course of your marriage is presumed to be jointly owned between the two of you. Income from your jobs, real estate and other property all count under this definition. It does not matter if your spouse is a CEO and you are a homemaker, any money sitting in any bank account (no matter whose name the bank account is in) is considered to be jointly owned by you two.
Generally speaking property is divided in a fair and equitable manner in a divorce. Fair and equitable does not necessarily mean 50/50 but often times it does work out that way or close to it, at least.
However, if we are considering the division of a marital estate in an abandonment situation then we must discuss the bad acts by your spouse and how they can impact this situation. The benefit (if you feel comfortable using that word in this context) to being abandoned by your spouse is that you can argue that you should receive what is known as a “disproportionate” share of your community estate. Disproportionate in this context simply means greater than fifty percent.
If you are attempting to receive spousal maintenance after your divorce (and meet the requirements of receiving those benefits) you also gain a leg up in this area as well. Considering how most Texas judges are wary of awarding spousal maintenance except in limited situations, abandonment may be a factor that gives you an advantage in making convincing arguments as to how and why you cannot meet your minimal basic needs with your income alone. Child support would also be awarded to you, as we discussed earlier, as a result of your earning primary conservatorship rights in the divorce.
Questions about abandonment in Texas? Contact the Law Office of Bryan Fagan, PLLC
Arguing a fault grounds based divorce, such as abandonment, in Texas is not easy and requires an experienced advocate to assist you in doing so. The attorneys with the Law Office of Bryan Fagan, PLLC are eager to assist you and your family with whatever situations you find yourself in as you approach a divorce case.
We offer free of charge consultations six days a week with one of our licensed family law attorneys. A consultation with an attorney allows you to ask questions you may have and to have your circumstances addressed in a comfortable and pressure free environment. Our attorneys and staff take a great deal of pride in helping our clients and look forward to discussing how we can do the same for you.