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Abandonment as Grounds for Divorce in Texas

Abandonment as Grounds for Divorce in Texas
Hendershot, Cannon & Hisey, P.C.

Most Texas divorces are handled as a “no-fault” divorce, meaning there’s no finger pointing and no apportionment of blame for the end of a marriage. Though no-fault divorce has become the most common way to dissolve a marriage in the U.S., there are still cases where divorce are filed on grounds of fault.

Does Texas Require Me or My Husband/Wife be at Fault for Our Divorce?

No, divorces can be granted on the basis of insupportability – or “no fault.”

What Are No-Fault and Fault Grounds in Texas Divorce?

Under Texas’ Family Code, there are seven grounds for divorce outlined by statutory law. These include fault grounds and no-fault grounds.

No-Fault Divorce

To initiate a no-fault divorce, a spouse can cite one of three no-fault grounds:

  • Insupportability– Insupportability is one of the most common grounds cited in Texas divorce cases. This generally means “irreconcilable differences,” and it is justification enough to seek a divorce due to spouses no longer seeing eye-to-eye, for whatever reason that may be.
  • Living Apart – Spouses who live apart without cohabitating for 3 or more years can choose to cite living apart as grounds for divorce. In these cases, courts typically assume living apart was something both spouses mutually agreed to do, simply based on the fact that it persisted for several years.
  • Mental Health Confinement – Texas has a statutory grounds for divorce involving a spouse who’s been confined to a mental hospital. Whether that stems from mental illness, a physical injury or accident, or some other cause, a person must have been confined for at least 3 years. Their mental health condition must also be severe enough that it is unlikely to improve, or is likely to persist should a person’s condition initially improve.

Fault-Based Divorce

While married spouses do not have to prove fault in order to get a divorce in Texas, claiming certain fault grounds could have an impact on certain aspects of a case, such as child custody.

Additionally, a family judge who doesn’t agree with the argument as to why one spouse is at fault may use their discretion to grant a no-fault divorce instead. On the other hand, they may also grant a divorce on fault grounds if there is sufficient justification, even if a divorce was initially filed on no-fault grounds.

Fault grounds include:

  • Cruelty
  • Adultery
  • Felony Convictions
  • Abandonment

My Spouse Has Cheated on Me. Can I Divorce Him/Her?

Yes. You can file for divorce based upon no fault or fault grounds, including adultery. You must prove that adultery is the reason your marriage came to an end for the judge to declare divorce on that basis. This often requires presenting evidence or witnesses.

Abandonment & Divorce

In order to cite abandonment grounds for divorce, a spouse will need to prove:

  • Abandonment has been continuous for at least one year;
  • The other spouse left voluntarily; and
  • They had the intent to abandon their spouse.

“Intent” in this usage generally means the person had no intention of returning to live with their spouse, and it can be evidenced in many ways. Leaving certain obligations unfulfilled (i.e. bills or debts), not responding to calls or e-mails, or not communicating with a shared child are a few examples.

Abandonment can certainly play a role in divorce, especially with:

  • Financial matters such as property division and spousal maintenance. In some cases, temporary orders or garnishment may be warranted.
  • Child custody and child support proceedings, should parents share children. Because Texas presumes a relationship with both parents to be in a child’s best interests, sufficient evidence will be needed to overcome the presumption.

Showing the other impact abandonment had on a child, or how it occurred, will be important for a divorcing parent who sticks with their child, and to obtain sole custody and right to make important decisions in the child’s life. However, no spouse should expect courts will side with them simply because they claim abandonment. Pursuing the most positive outcome possible, and clearing all the hurdles along the way, requires experienced attorneys who know Texas law and how to protect their clients’ rights.

Call (713) 909-7323 or contact us online to discuss your case.