What Is Abandonment, and How Does It Affect a Texas Divorce?

a wife sits sadly on the stairs while her husband abandons her

Updated August 11, 2022

The vast majority of divorces in the State of Texas are no fault, which means that neither spouse is charged with causing the dissolution of the marriage. There are, however, some instances in which pursuing a fault-based divorce is preferable to a no-fault divorce, and divorces that are predicated on abandonment can be a good example.

When a spouse abandons his or her family, the court takes notice. If your spouse has abandoned you and your family, it is time to consult with an experienced Central Texas divorce lawyer.

What Constitutes Abandonment in a Marriage?

Abandonment, as it relates to divorce in Texas, refers to a situation in which your spouse leaves you, your children, and your home with no indication that he or she plans on returning, often intending to end the marriage as a result. To rise to the legal level of abandonment, two requirements for abandonment must be met and two more are considered:

Intention of Abandonment

Your spouse must have left with the intention of abandoning you. If you gave your spouse his or her walking papers or granted him or her permission to leave (upon his or her request that you do so), it’s unlikely that your spouse’s actions will rise to the level of abandonment in the eyes of the law.

If, however, your spouse left of his or her own accord and doesn’t seem to be coming back, you may have an excellent case for a divorce based on the grounds of abandonment.

Duration of Absence

The amount of time your spouse has been absent can play an important role in determining whether his or her actions amount to abandonment. Generally, an absence of a full year or more is necessary to prove abandonment in the context of divorce.

For example, if you and your spouse have a particularly dramatic fight, and he or she takes off for the long weekend, this is not going to rise to the court’s definition of abandonment.

Distinction from Separation

The State of Texas does not recognize legal separation between spouses. You are married, or you are not. If your spouse explains to you that he or she is going to attempt a trial separation, this act will likely lack the permanence necessary to prove abandonment.

However, the judge might consider the absence as abandonment if your divorcing spouse is claiming his or her absence was a trial separation, but he or she engaged in none of the following attempts to save your marriage:

  • Frequent calls or talks

  • Couples counseling

  • Attempts to reconcile

Financial Contributions

If your spouse has abandoned your family but continues to contribute to your family’s financial coffers, this can weaken your case for abandonment. Spouses are required to support one another financially in Texas, but this is not where spousal requirements end.

In other words, it is your responsibility to show the court that your spouse’s intention was to abandon you in the marriage. The court will take the specific circumstances relevant to your case into careful consideration when making its determination regarding your claim of abandonment.

When dealing with a divorce based on abandonment, it is important to collect plenty of evidence. Prepare a solid case for abandonment with the help of a skilled divorce lawyer. Contact The Law Office of Brett H. Pritchard to get started.

How Does Abandonment Affect Child Custody?

Divorce obviously becomes more complicated when children are involved. (Learn more about helping your children through divorce.) If you and your children have been abandoned, then you have all suffered financially and emotionally.

Keeping a household running and raising a family (if you share children) is a lot of work, and if your spouse leaves you to carry this burden on your own, it can be overwhelming. The court recognizes this fact and, in response, allows divorces based on abandonment.

While Texas courts typically proceed with the presumption that it is in the best interest of the children to maintain a continued relationship with both parents after divorce, abandonment can strain this presumption, making an experienced divorce lawyer very helpful.

Physical Custody, Possession, and Visitation Rights

The court can grant a divorce based on abandonment, and the abandonment itself can affect the court’s child custody decisions. Every decision the court makes in relation to child custody is based on what it considers to be in the best interest of the children involved.

The court’s default position is that children are best served when they can continue fostering meaningful relationships with both parents. While abandonment is not likely to move the court away from this stance, it may limit the parenting schedule that the court grants to the parent who is deemed to have abandoned his or her family.

If your spouse is determined to abandon you and your children, then the court has considerable discretion and can seriously limit your spouse’s access to visitation rights or possession of his or her children. (Read more on child custody)

Conservatorship Rights

Abandonment can affect the court’s decisions about conservatorship as well. The court does not take kindly to parents who abdicate their parental responsibilities, and this tends to influence the court’s decisions about conservatorship, which is all about parental responsibility.

The fallback position of Texas courts is that parents should be named joint managing conservators of their shared children. Doing this means that both parents continue to share the responsibility of making important decisions on behalf of their children. The types of decisions included within this conservatorship include the following:

  • Decisions about where the children will live (within a specifically defined area)

  • Decisions about the children's medical treatment and health care

  • Decisions about the children’s education

  • Decisions about the children’s religious upbringing

  • Decisions about the children's extracurricular activities

These are critical parental decisions, and, if your spouse has abandoned your family, the court may extend this abandonment to mean that he or she is not up to the task of making important decisions on behalf of your children. As such, abandonment often affects the court’s decisions regarding conservatorship.

If you and your children have been abandoned, contact a Central Texas divorce lawyer. A good lawyer will help you fight for conservatorship arrangements that are best for your family.

How Does Abandonment Affect Your Marital Property?

Texas is a community property state, which means that everything you amassed together as a married couple belongs to both of you equally. This does not, however, mean that your marital property will be divided equally down the middle when you divorce. Instead, the court seeks a division of property that is "just and right."

Abandonment is likely to play an important role in how the judge in your case calculates a division that adheres to the principle of what is just and right.

If you have been abandoned in your marriage, then you have faced financial hardships due, in part, to the loss of your spouse's income over the ensuing period. This factor will be taken into consideration by the court in determining how your marital property will be divided. (Find out here if your property is marital or separate.)

Have You Been Abandoned by Your Spouse? Consult an Attorney Today!

Texas is a no-fault divorce state, and as such, most divorces in Texas are based on irreconcilable differences, referred to as “insupportability” under Texas law. Generally, this means that the spouses are unable to get along and want to end their marriage. In cases involving insupportability, one spouse files the divorce paperwork to begin the divorce process.

In some cases, however, the fault does play a role in Texas divorce—such as when your spouse abandons you and your marriage for a significant length of time. Divorce is never easy, but a divorce based on abandonment can be especially traumatic.

However, you are not alone; Mr. Brett Pritchard at The Law Office of Brett H. Pritchard in Central Texas has the experience, knowledge, and compassion to fight for the most positive resolution of your complicated fault-based divorce. Contact us online or call us at (254) 781-4222 for more information.

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