The divorce laws in Texas can make it hard to justify filing on a fault ground, especially if it requires a waiting period. The state's legislative code includes several, however, and one of them is abandonment. Courts can consider marital fault when deciding issues of property, custody and spousal support, but they’re not always required to. There’s no guarantee that you’ll receive anything for your trouble, even if you can prove that your spouse walked out on you.
Abandonment as a Divorce Ground
Your spouse must stay gone for a while before you can file for divorce on the ground of abandonment. Texas law requires that he remain absent for one year. You’d also have to convince the court that he departed with the specific intention of leaving you on your own to fend for yourself. Filing on a fault ground in Texas involves proving to the court that the fault exists.
The very nature of abandonment can make the one-year period required by Texas law very problematic, especially if you have insufficient income to support yourself and your children. Although Texas’s legislation does not include any provisions for legal separation, it does allow you to open a separate litigation to address issues regarding your children while you're waiting to file. This is a “Suit Affecting the Parent-Child Relationship,” and it is also part of every divorce action involving kids. You can file this suit before the year is up to establish a custody and child support order.
Property Distribution and Spousal Support
Texas is a community property state, so marital property is divided equally between you and your spouse. However, the state code does allow judges to consider marital misconduct and use it to adjust from a 50/50 split. If you prove abandonment, your spouse cannot seek spousal support from you, but you could potentially receive it from him if you were married for longer than ten years and can’t adequately support yourself on your own. Texas law frowns upon awarding alimony, so getting a court to award for support might still be an uphill battle. Even if you’re successful, the term will probably be limited to under three years and cannot exceed 20 percent of your spouse’s monthly gross income.
If your marriage was not long enough to warrant spousal support, and if you do not have a great deal of marital property for the court to divide between you and your spouse, consult with an attorney to find out if it’s worth your while to wait out a year to file on the fault ground of abandonment. Texas also offers a no-fault ground called “insupportability,” meaning that your marriage simply isn’t working anymore. There’s no waiting period for a no-fault divorce, and you don’t have to prove wrongdoing, so you could conceivably be divorced sooner and move on with your life.
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