Sometimes one spouse will think they’ve been abandoned by the other and wonder if they can file for divorce on their own without the abandoning spouse’s participation. While there are times that can happen in Texas, there are specific requirements to use abandonment as a cause for a divorce. Read on for what you need to know.
What Is Abandonment in Texas?
Texas defines marital abandonment this way: One spouse voluntarily leaves the joint home and plans never to return. The abandoned spouse may or may not know where the other has gone. Before any legal action can be taken, the remaining spouse must have been abandoned for at least one year. It’s important to understand that this time period must be continuous. So, for example, if the spouse who left returns to celebrate a child’s birthday, the one-year period starts over.
Abandonment is also defined as when the abandoning spouse neither communicates with the other spouse nor provides any child or spousal support. If one spouse leaves and doesn’t intend to return but sends financial support or remains in contact, this can be more challenging for the courts to view as abandonment. If this is the situation, working with an experienced family law and divorce attorney is best.
Does Mutual Separation Count as Abandonment?
Most often, no. In abandonment, which is a fault-based divorce, one spouse leaves without permission or against the wishes of the other and cuts off all communication and financial support.
When both spouses agree on a separation, one moves out with the permission of the other, and there is still some communication and potential financial support; that’s not abandonment. These cases will likely pursue divorce through a no-fault arrangement, where neither is to blame, and the divorce happens because the marriage has broken down.
What Is a Fault-Based Divorce?
Abandonment is a fault-based divorce. These aren’t valid in every state in the U.S., but Texas recognizes them. As the term might suggest, a fault-based divorce is one in which one spouse accuses the other of behavior that leads to the breakdown of the marriage. Sometimes both spouses accuse each other.
The types of faults alleged include:
- Adultery. When one spouse has a sexual affair with someone outside the marriage, they’ve committed adultery.
- Cruelty. This is when one spouse inflicts pain or emotional distress on the other to the point that the other spouse feels they can no longer live together. It’s a broad term with many variations. Family court judges usually have to determine if the behavior described constitutes cruelty. There may be cases where a type of behavior is determined to be cruel in one context but not another.
- Felony conviction. If one spouse is convicted of a felony and serves at least one year in prison without pardon of any kind, the other spouse can file for divorce using that as the fault.
Fault-based divorces tend to be acrimonious, which means they can take longer and cost more. That’s why many people will try to use the no-fault divorce instead.
If My Spouse Has Disappeared, Can I File for Divorce Without Them?
If your spouse has abandoned you and you can’t find them, it can complicate the divorce, but it’s not necessarily impossible. In a fault-based divorce such as abandonment, the spouse who files for divorce is usually required to submit copies of all the relevant paperwork to the other spouse, notifying them of the intent to divorce. This can be done in person by the spouse who’s filing if they know where the other spouse is, or a sheriff, private process server, or constable can do it. This is formally known as the process of service.
When the abandoning spouse has disappeared (which can be challenging to do in the digital age; some spouses hire private investigators to track down the other spouse), the divorce petitioner can ask the court to use a different type of notification. One such notification is publishing a notice in the newspaper in the locale where the divorce is being filed.
The abandoning spouse has 30 days to respond from the time they were served (including notifications in newspapers). If they don’t, the court can go ahead and finalize the divorce. In those cases, the abandoning spouse not only abandons the marriage but has given up rights to claim assets left behind, which the courts will divide. They also have no say in terms of child custody.
What Is Emotional Abandonment?
Most abandonment cases involve physical abandonment, where one spouse literally leaves the home they’ve shared. But there are cases where the abandonment is of an emotional rather than physical nature. Emotional abandonment means one spouse has completely lost all interest in the other.
One example is when one spouse becomes so addicted to something (such as drugs or alcohol) that they’re consumed by it to the exclusion of their life with their spouse, and they have no interest in working to stop the addiction.
What Should I Do if I Think I’ve Been Legally Abandoned by My Spouse?
Call us as soon as possible at 817-813-8513 for a free case evaluation. Because Texas has such specific requirements to qualify for receiving a divorce using abandonment as a cause, it’s best to work with a legal professional. Our experienced, knowledgeable family law and divorce lawyers can help you determine if you’re qualified or will be soon, then help you map out the next steps.