Abandonment and Fault-Based Divorces in Texas

By Erika Johansen

Abandonment is one of the grounds for a fault-based divorce in Texas. Behavior such as abandonment may impact the court's decision when it awards custody of the children and decides how to divide the spouses' property. Proof of abandonment may entitle the abandoned spouse to legal custody of the children and a disproportionate share of the marital estate.

Grounds for Divorce

Most Texas divorces are no-fault on the grounds of insupportability, meaning that the law holds neither spouse responsible for the failure of the marriage. Insupportability is typically used when both spouses wish to end the marriage. However, Texas also has several grounds for divorce that assign blame for the failed marriage. These grounds allow one spouse to seek a divorce without the consent of the other. When one spouse alleges in the divorce complaint that the other spouse was to blame, this is known as a fault-based divorce. In Texas, these fault grounds include adultery, felony conviction, cruelty (abuse), mental incapacity, three years of living apart, and abandonment.

Abandonment

Your claim of abandonment has two specific requirements in Texas. The first is that your spouse left and remained gone for at least a year. The second is that the spouse intended to abandon you when he left. So, for instance, if your spouse were kidnapped and then returned after two years, you would not be able to claim abandonment. If you seek a divorce on the grounds that your spouse has abandoned you, you must allege the abandonment in your divorce complaint to the court. But it's not enough to simply claim you were abandoned by your spouse; a Texas court will demand some form of evidence. Typically, the court will consider the testimony of witnesses, but admissible hard evidence, such as letters or other documents, may also serve to prove abandonment.

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Effects of Abandonment

If you're successful in proving to the court that you were abandoned, then your spouse's fault may come heavily into play when the court makes the final divorce decree. If you are able to prove that your spouse's abandonment of you contributed directly to the decline of the marriage and deprived you of expected benefits from continuing the marriage, this may move the court to grant you a larger share of the divided marital property. Furthermore, when granting custody of the children, a Texas court is legally required to consider the child's best interests. Under Texas law, this "best interest" consideration looks at factors such as the stability of the parent's home; who acted as the primary caregiver to the child before divorce; and the child's physical and emotional needs. Taking these factors into account, proof of your spouse's one-year abandonment may suggest to the court that awarding your spouse legal or physical custody of the children is not in the children's best interest.

Texas Alimony

Texas courts don't grant alimony very often, partly because Texas law requires a marriage of 10 years before either spouse is eligible to receive alimony from the other. Moreover, in recent years, Texas law has placed significant limits on the duration of alimony. However, if you are eligible for alimony, two of the factors a court considers in awarding alimony are the contribution of each spouse as a "homemaker", and any marital misconduct committed by either spouse. When one spouse has abandoned her family, this may impact the court's consideration of both of these factors, and could increase the alimony award.

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Guide to Fault Divorce in Massachusetts
 

References

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