At Fault Divorce in Texas: Abandonment

Fault in a Texas Divorce: Abandonment

Texas is what’s known as a “no-fault divorce state,” which means that couples end their marriages without proving that one spouse was at fault for the breakdown of the relationship. Instead, most divorces in Texas are based on the marriage has become insupportable – the two spouses can find no common ground to reconcile their differences. Not every Texas divorce, however, follows this path, and sometimes fault – in the form of abandonment – plays a part. If your spouse has abandoned you and your children, seek experienced legal counsel; your financial future could depend upon it.

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The Legal Definition of Abandonment

You know how difficult it is to cope with your spouse’s abandonment. It’s important to understand, however, that there is a legal definition of abandonment, the elements of which must be met before you can seek a Texas divorce that’s predicated on abandonment. Specifically, there are two necessary elements:

  1. Your spouse left you (and your children if you have them), and his or her intent was to abandon you.
  2. Your spouse has been gone for at least a year.

If neither of these two elements applies to your situation, it doesn’t rise to the level of abandonment. Further, you must show that your spouse actually intended to abandon you.

Community Property

Because Texas is a community property state, everything you and your spouse accrued during your marriage is owned equally by both of you. However, you shouldn’t take this to mean that your marital property will be split evenly down the middle at the time of a divorce. Instead, The State of Texas seeks a “just and right” division of marital property, which allows the court considerable discretion when dividing your property in a Texas divorce.

Abandonment and the Division of Marital Property

While most divorces in Texas aren’t fault-based, that doesn’t mean that a divorce based on abandonment will proceed exactly like a no-fault divorce. The issue of abandonment is likely to play a significant role in how the court determines a division of property that is just and right, given the circumstances. If you and your children have been abandoned, you have no doubt suffered financial and emotional hardships that were borne of that abandonment. One obvious financial burden is that while your partner was AWOL, your household had to keep going without his or her income. The judge presiding over your divorce will likely consider this fact in determining a just and right division of your marital property.

Abandonment and Your Children

During divorce, child custody arrangements are of universal primary concern – they typically take precedence over even the division of marital property. If your spouse has abandoned you and your children, you’ve been through an exceedingly difficult time that likely includes extreme financial and emotional setbacks. Caring for your family without the support of your spouse is an overwhelming hardship, and the court isn’t likely to lose sight of this fact.

When it comes to issues related to child custody, Texas courts typically proceed with the presumption that keeping a healthy and ongoing relationship with both parents after a divorce is in the best interests of the children. However, if one parent has abandoned the family for a year or more, it may mitigate this presumption. In matters of child custody – as in the division of marital property – the judge wields a considerable amount of discretion, and he or she can use this discretion to significantly limit the amount of access your soon-to-be ex will have with your shared children.

Abandonment and Its Effects on a Texas Divorce

When it comes to abandonment, the negative effects are difficult to overstate. Once it’s established that your spouse’s abandonment directly contributed to the dissolution of your marriage and deprived you and your children of the expected continued benefits of that marriage, it will likely guide the court toward a decision that grants you a greater share of the marital property. Further, it will likely color the court’s view of what’s in the children’s best interests. The court considers several factors in evaluating the legally mandated best interests of the children:

  • The stability of your home
  • Which one of you acted as the children’s primary caregiver during the marriage
  • The physical and emotional needs of the children

If a parent abandons the home for an entire year, it strongly indicates that the parent is unlikely to excel in any of these categories.

Spousal Maintenance

What other states often call alimony, the State of Texas generally refers to as spousal maintenance. Texas courts don’t often grant spousal maintenance. First, you must demonstrate that you don’t have enough property and/or income to provide for your basic needs. One of several additional strict parameters, however, must also apply:

  • You were married for at least ten years and are the lower earner who cannot provide for your own basic needs.
  • You are the lower earner, and you cannot provide for yourself because of a physical or mental disability.
  • You are the lower earner and have custody of a child you share. This child has a mental or physical disability that precludes you from working toward your financial independence.
  • Your spouse is the higher earner, and he or she has been convicted of committing family violence against you or your children in the two years before the divorce filing.

If you do qualify for spousal maintenance, the court can consider your spouse’s abandonment when awarding it. For more information, see our family law blog article, Texas Divorce and Spousal Maintenance.

If Your Spouse Abandoned You, Consult with an Experienced Houston Family Law Attorney Today

Divorce is always difficult, but abandonment can make it that much more overwhelming. The dedicated legal team at The Rudisel Law Firm, P.C., in Houston is here to help. Our compassionate divorce attorneys have the experience, knowledge, and determination to advocate aggressively to defend your best interests throughout the divorce process. For more information, please contact or call us at 713-781-7775 today.

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