Two types of divorce exist in Texas. The first is “no-fault,” in which the parties agree that the marriage cannot reasonably be reconciled. The second type is “fault” divorce. To file for fault divorce, the aggrieved spouse must show a specific ground for filing for divorce. One ground for fault divorce is abandonment.
To file for a fault divorce based on abandonment, the aggrieved spouse must show either that the other spouse left the marital home with the intent not to return or that the spouse left and has been gone for at least one year.
Many people file divorce under “no fault” grounds in which the parties agree that both spouses share in some fault for the breakdown of the marriage. Filing a divorce under fault grounds may likely make the process more acrimonious. In addition, if a spouse files for divorce on fault grounds based on abandonment, the other spouse can counterclaim for another fault ground. However, when the court considers issues in the divorce such as child support, child custody, and the distribution of marital assets, it may consider who is deemed at fault. If one spouse is found to have abandoned the other spouse, it could impact these other issues.
In Texas, five other grounds for fault-based divorce exist. First, one spouse can sue for divorce based on cruelty, in which the other spouse has inflicted unnecessary physical or emotional pain. Second, a spouse can sue for divorce on the grounds of adultery. Third, if one spouse is convicted of a felony and the judge sentences that spouse to one year or more in prison, the other spouse can file for divorce on fault grounds. Fourth, on grounds of living apart, one spouse can sue for divorce if the parties have lived apart for at least three years. The last fault ground, other than abandonment, is when one spouse is confined to a mental hospital.
Please consult a qualified lawyer licensed to practice in Texas to determine how the facts of your situation apply to Texas abandonment divorce law, which is subject to change.