Today, many states provide for married couples to seek “no-fault” divorces. No-fault divorces mean that neither of the spouses is to blame for the breakdown of the marriage. Marital misconduct is irrelevant.
Instead, a spouse must demonstrate only the existence of irreconcilable differences between the parties. In a growing number of states, no-fault divorce is the only means of terminating a marriage.
However, in some states, including Texas, you can still obtain a “fault” divorce.
A fault-based divorce is where one or both spouses allege that the other’s unjustified conduct caused the breakdown of the marriage. While a fault-based divorce may vindicate a spouse’s hurt feelings, they are typically more volatile, time-consuming, and costly than a no-fault divorce.
What Is a Fault-Based Divorce in Texas?
A fault-based divorce requires the person asking for the divorce to demonstrate to the court that the other party has committed one of several acts that Texas law considers to be grounds for a fault-based divorce. In Texas, there are four primary grounds for obtaining a fault-based divorce.
Texas law defines cruelty as the willful and persistent causing of unnecessary pain or suffering to a spouse. The cruel conduct must be to a level that renders cohabitation insupportable. Texas courts determine cruel treatment on a case-by-case basis. What is cruel in some instances may not be in other contexts.
Texas law defines adultery as the “voluntary sexual intercourse of a married person with one not the husband or wife of the offender.”
Felony Criminal Conviction
In Texas, a spouse of another who is convicted of a felony, who has served at least one year in prison, and who has not been pardoned, may seek a fault-based divorce in court.
While rare, Texas courts will award an abandonment divorce if the other spouse has voluntarily left the marital residence with no intention of ever returning and has stayed away for at least one year. The one-year period must be continuous.
For example, if an abandoning spouse returned to the marital residence to celebrate a holiday with the family, then the one-year time period may reset anew.
A harder question is whether spousal abandonment laws in Texas apply to a spouse who continues to provide financial support to the marital residence. For one finding themselves in such a scenario, it is highly advised to seek the counsel of an experienced Texas abandonment divorce lawyer.
Do Spousal Abandonment Laws in Texas Apply to Mutual Separation?
Generally no. Abandonment laws in Texas apply when one spouse leaves the marital home without the intent of ever coming back. In addition, the abandoning spouse generally must make no effort to communicate or offer any financial support to the other spouse.
In comparison, separation is commonly a mutual decision between both spouses. It’s intended to keep the peace when the parties cannot get along. In addition, spouses normally communicate during separation on matters of childcare and finances. An abandoning spouse usually makes no attempt to settle issues until after the filing of the divorce.
How Do I Get an Abandonment Divorce in Texas If I Can’t Find My Spouse?
In Texas, a spouse filing for abandonment divorce must notify the other spouse and provide them copies of all the paperwork, including the complaint and any proposed property settlement or parenting plan
This is called “service of process.” It is typically carried out by the sheriff, constable, or private process server. A divorcing spouse can also serve the other personally by handing them a copy of the divorce complaint and summons. Without service of process, the court won’t award a divorce.
In situations of abandonment divorce, it is frequently the case that either the abandoning spouse refuses to participate or they conceal their new whereabouts. In these situations, an abandoned spouse can seek a default divorce based on abandonment.
In a default divorce, the other spouse is completely absent from the proceedings. Issues of fault, property division, and child custody are all decided without their input. A Texas court will award a default divorce if the other spouse fails to file a response by the first Monday after 20 days from service of process.
What if the other spouse’s whereabouts are unknown? In such a case, a divorcing spouse can ask the court to permit service by publication or other methods of alternate service. After complying with court rules on divorce by publication, the spouse seeking a divorce can publish a notice of the divorce in a newspaper in the same locality as where the divorce proceeding is taking place.
If the abandoning spouse does not respond within 30 days, the divorcing spouse can proceed with the divorce hearing. The court will then enter a default judgment in favor of the divorcing spouse.
An Experienced Firm Dedicated to Your Case
Navigating spousal abandonment divorce laws and filing abandonment in Texas can be overwhelming. The seasoned divorce attorneys at The Larson Law Office provide our clients with peace of mind in an uncertain time.
Whether it be ensuring your spouse is properly served or litigating your abandonment divorce case at trial, our attorneys understand the ins and outs of abandonment divorce in Texas. We will be with you every step of the way.
The Larson Law Office represents clients in matters involving abandonment divorce in Texas. Contact us today for a free consultation. We will listen to you and help you determine your best options.