Even though Texas offers divorcing couples the option of you know fault divorce, some couples will choose to divorce based on grounds. In Texas, there are several grounds for divorce that are allowed. One of those grounds is abandonment, in which one spouse departs from the marital home and never returns.
Texas has specific guidelines for abandonment as grounds for divorce. Abandonment is different from separating by mutual consent and one or both spouses move out of the marital home, and continue to communicate as needed. Divorce due to abandonment is considered an “at-fault” divorce and is more complex than a no-fault divorce.
Note that a couple separating is different than “legal separation,” which Texas divorce law no longer includes. A couple is considered married until the divorce is final.
How Texas Defines Abandonment
There are two types of abandonment:
- Physical abandonment is when one spouse leaves the home without returning, contacting the other spouse and/or children, or providing any financial assistance for one year or more, continuously.
- Emotional abandonment, in which one spouse no longer has an interest in the other, such as addiction or other reasons; is more difficult to prove.
In either case, the abandoned spouse has exited the marriage, “ghosts” their spouse, and never intends to return. Using this as a fault ground requires proof of abandonment, including testimony, written and digital communication, and any other available evidence of the spouse’s intent to abandon the marriage.
However, abandonment doesn’t apply if one spouse asked the other to leave, or if the departing spouse stated their intent to exit. If there was communication between the two spouses, financial support, or permission by one for the other to leave, the lines may become blurred. Speak with a Texas divorce attorney to understand your rights and how abandonment may apply to your situation.
The Missing Spouse
Frequently, a spouse disappears to delay and avoid the divorce. This can delay the process but not prevent it from happening.
An abandoned spouse must make an effort to locate the other spouse. If all other methods fail and the other spouse evades service, the abandoned spouse consults with their divorce attorney and the court to determine alternative methods of processing service to give the other party the required legal notice. This could be posting a notice in a newspaper, something online, or at a law office.
The other spouse has approximately 20 days after the first Monday following the process service. Once the required legal notice has been made public, and sufficient time has elapsed for service, the court will proceed with the divorce if the spouse has not responded.
How Does Abandonment Affect Property Division And Conservatorship (Child Custody)?
In the normal process, one spouse files the petition and has the other spouse served with these papers. The other spouse then files an answer within a specified period with the court. But if the other spouse fails to respond and refuses to reveal their whereabouts, the court has the option of awarding more or all of the marital estate to the abandoned spouse. This can include marital debts, which could increase while the other spouse is gone. Your divorce attorney can help you determine what to expect in this case.
Abandoning a family can have a detrimental impact on custody and visitation. The abandoned spouse will likely be awarded sole custody, meaning they will be the only parent involved with decision-making and other care. Because abandonment is not in the best interest of the children, it is possible that the other spouse could see their parental rights terminated if the abandoned spouse decides to file for termination.
Just like filing for divorce, the spouse will have to be notified by service of process. If they fail to respond, the court will proceed without them, and their parental rights could be terminated.
Wendy L. Hart is Tarrant County’s Compassionate Divorce Attorney
If you believe your spouse has committed abandonment, contact our office today to learn more about what you can do to protect yourself and your family. Texas’s strict prerequisites call for expert help for divorce due to abandonment. We can help you navigate the divorce process and help you move forward to a better future.
Wendy L. Hart represents men and women in all family law matters, including divorce, child support, child custody/visitation, estate law, and other family law issues. She has been helping families throughout Fort Worth and Tarrant County since 2001.
If divorce is in your future, call us at (817) 842-2336 or use our online contact form to schedule your virtual consultation or appointment.
