Originally published by Family and Criminal Law Blog.
Why might I choose to file for divorce based on a fault ground?
Forty years ago, the first no-fault divorce was granted in California. Prior to this time, couples seeking a divorce were required to list a valid ground for divorce, which often included adultery, abandonment, and cruelty. If one of these grounds did not exist in the marriage, but the spouses nonetheless wanted a divorce, they were forced to fabricate a grounds for divorce. Recognizing a need for more honest and efficient divorces, California, and soon after every state in the union except for New York, adopted a version of no-fault divorce.
Most couples in Texas looking to file for divorce today will file for a no-fault divorce, in which the parties will list that the marriage cannot continue because the spouses can no longer get along in the marriage and there is no chance of reconciliation. However, per Texas law, several fault grounds for divorce continue to exist. At times, it can be advantageous or even necessary for a spouse to seek a divorce based upon one of these fault grounds. Below, our Midland, Texas divorce lawyers discuss divorce based on abandonment in the state.
Abandonment Can Influence a Custody Award and Division of Assets
Abandonment occurs when one spouse deserts the other spouse with the intention to end the marriage. Proving abandonment by your spouse can influence the court’s decisions when it comes to custody of your minor children. To successfully demonstrate abandonment, you will need to show that your spouse has been absent for one year or more. Further, filing for divorce based on abandonment might become essential if you cannot reach your spouse.
Family courts in Texas take the position that generally it is in a child’s best interests to have a relationship with both parents. However, where one spouse has abandoned the family, this will negate that presumption. A judge weighing the custodial rights of a spouse who left his or her family is less likely to award joint custody and will likely allow for just limited visitation.
Further, a judge may take your spouse’s abandonment into account when determining how your marital assets will be divided. Texas is a community property state and marital assets will be divided in accordance with what is just and right. While this typically means equally, where one spouse abandoned the family, a judge may be included to issue the other spouse a disproportionate share of the assets. Your divorce lawyer will review the circumstances surrounding your spouse’s abandonment to determine your best bet in filing for divorce from your spouse. Armed with full knowledge of your individual situation, your attorney can develop a divorce strategy that will benefit you and your family.