Back in the 1970s, Texas (and many other states) passed no-fault divorce laws, which means you no longer have to prove fault grounds if you want to get a divorce. You can still file for divorce based on fault grounds in Texas, but you also have the option to file based on no-fault grounds. As one of the four fault grounds in Texas, how might spousal abandonment affect your divorce case?
Texas’ seven grounds for divorce at a glance
Since Texas became a no-fault divorce state, the vast majority of divorces are now filed as no-fault divorces. As explained in the Texas Family Code, Texas’ no-fault grounds include insupportability (AKA, irreconcilable differences, the No. 1 ground for divorce in Texas), living apart and confinement.
Along with spousal abandonment, the four fault grounds in Texas include cruelty, adultery and abandonment. Since you don’t need to prove fault in a Texas divorce, why would you want to file based on fault grounds?
In many cases, proving fault grounds is simply a waste of time and money, especially if you share few if any assets with your spouse and don’t have children. However, judges will consider fault grounds when deciding how to fairly and equitably divide up a couple’s community estate. So, if you are an abandoned spouse who wants your fair share of your shared assets, proving abandonment may be in your best financial interest. Abandonment as a fault ground could also come into play if your spouse abandoned you and you want to get sole custody of your children.
We took a deep dive into the seven grounds for divorce in this past post—check it out for additional details.
What qualifies as spouse abandonment in Texas?
If you are a wife who is claiming “my husband abandoned me,” you will need to prove a couple of things in order for the court to rule that you qualify for the fault ground of spousal abandonment. You can’t just say “my husband abandoned me” and call it a day.
You have to provide evidence that your husband abandoned you, he had no intent to return to the marriage, and you and he have lived apart continuously for one year or more. As with any civil lawsuit, you will also need to serve your spouse with notice that you have filed suit for divorce. Your spouse has a constitutional right to due process and all attempts possible should be made to allow him the opportunity to respond to your divorce filing.
What are the consequences of marriage abandonment?
If you decide to abandon your spouse and allow abandonment to be used as a fault in the breakup of your marriage, you could lose a portion or all of your shared marital estate. If your spouse has made reasonable attempts to locate you, and they can’t, they can default you in a divorce case.
That means your spouse may very likely get any assets they want to keep from your community estate, and you lose that property. Now, if your estate isn’t worth anything, no big deal—but if you want to maintain your right to any shared property, you should respond to notice of the divorce filing quickly.
On the other hand, if you are the abandonee, meaning the person who was abandoned, and you can’t locate your spouse, you can ask the court to create an unequal division of the marital estate based on the fault of abandonment in and of itself. However, you must go through the necessary steps to prove abandonment occurred.
In cases of husband abandoned wife or wife abandoned husband, shared debts may also become an issue. If your spouse left any shared debts on your shoulders, you will still bear responsibility for paying off your portion of that debt, or all of it, if your spouse never resurfaces again.
As noted above, spousal abandonment can also play a role in Texas child custody cases. The problem you may run into is that nine times out of 10, the courts will name the two parents joint managing conservators. Even when you go to prove up an abandonment divorce and custody case, where the other party is not present and you’re trying to default them, the court will still want to know why you’re going for sole custody, limited access, or no access.
In those cases, you would want to plead with specificity that the other party abandoned you, your children and the household. That way, you can actually get orders put in place to protect your wishes for custody and abandoned spouse rights, should your ex come back in six months and want to regain custody of your kids.
I can’t find my spouse, can I still get a divorce?
Yes, there are steps you can take to get a divorce in cases of husband or wife abandonment if the other party can’t be located. When you’re dealing with spousal abandonment and someone is generally lost (you don’t know their address or how to locate them), you can actually serve that party notice without knowing where they work or currently reside. This process is known as “alternative service.”
You must follow the proper protocols, which include filing a Texas 106 Motion for Alternative Service with the court. In order to get the court to agree to alternative service, you will need to show you did your due diligence to try to locate your spouse and provide evidence to support your plea.
If the court finds that personal service (serving your spouse in person) isn’t possible in your case and agrees to alternative service, you can serve notice to your spouse by:
- Posting notice in the local newspaper (citation by publication); and
- Effective Dec. 31, 2020, when Rule 106 of the Texas Rules of Civil Procedure was amended—serving notice “electronically, by social media, email or other technology.”
If my ex resurfaces, can he sue me for community property awarded to me?
When we represent a client who is an abandoned spouse, we include an abandonment clause in the divorce filing. That—along with following proper protocols like the Rule 106 Motion for Alternative Service—allows the court to proceed with awarding an unequal division of the marital estate. The abandonment clause confirms in writing that you did in fact prove abandonment and the court acknowledged the abandonment in its findings.
That way, If the other party comes back later and says, “Hey, I didn’t even know this was going on,” you’ve taken steps to protect your property. If the party submits a motion for a new trial or review, it will be much more difficult to convince the court to unwind what it has already decided with respect to the division of property.
Have questions about spousal abandonment divorce in Texas?
Our friendly and knowledgeable divorce lawyers Fort Worth TX are here to help. To schedule a confidential case review with our founder attorney Justin Sisemore, please call our law office at (817) 336-4444 or connect with us online.
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