Most people who get divorced in Texas do so based on what they view to be 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.
For many years, Texas was a state like most others 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 period now, Texas has joined every other state in the country as being 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 on which to base your divorce in. Rather, all you need to say is that you and your spouse have a discord or conflict and personalities that are irreconcilable and are leading 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 been weighing 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 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 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 do impact people divorcing in Texas daily.
What is abandonment in conjunction with a Texas divorce case?
Before we can discuss 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 he or she has abandoned you and your marriage. If you provided him or her with permission to leave or asked him or her to leave then 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 as a result of the abandonment. If your spouse were to leave your home but was 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 are going to 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 to attempt to work through any problems in the marriage. Rather, abandonment is done with the intent to not return or at least to not return for an extended period.
If your spouse were to attempt to argue that he or she was 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
Many times in a divorce you may find yourself in a circumstance where you are attempting to argue that you are 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 you were abandoned by your spouse you may be attempting to assert the high ground from a moral standpoint and to show that you were wronged by your spouse.
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 aspects that are stronger or more beneficial 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 he or she did attempt to reconcile with you in some way 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 be able to get work done from different places across the globe. Mobile workplaces in remote employment may not be the norm but they certainly aren't as uncommon as they used to be. If you find yourself in a position where you are needing 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 that you are transferred from The Houston area for work 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 he or she does 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 he or she continues to act cruelly even from afar and fails to support you then this could be a potential claim for abandonment even if you were the one to physically leave your spouse. I would work with an experienced family law attorney before attempting to present a situation like this to a court in Texas, however.
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 would 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 as a result of 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 that the people involved just 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 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 separate from your spouse while you were married this does not do anything to 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 what the circumstances of your case are 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 are unable to locate your spouse at this time you can work with an experienced family law attorney to define him or her. 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 that 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.
Questions about the material presented in today's blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material presented in today's blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys 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 and to discover how your family circumstances may be impacted by the filing of a divorce or child custody case.