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C. Eric Schmidt - Attorney at Law

Marilyn Gale Vilyus - Founding Attorney - Semi-retired - of counsel to C.E. Schmidt and Associates, Attorneys at Law

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    Energy Corridor:
        14780 Memorial Dr, Ste 103
        Houston, Texas 77079



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What Is "Abandonment"?

By: Marilyn Gale Vilyus

In family law, "abandonment" has a precise legal definition.  A person is guilty of "abandonment" if they intentionally left the marital residence with the intent to abandon, were gone for over one year, and did not provide any support for their spouse or child support for their children.

This could cause the person to lose custody rights to their kids and is certainly a "fault ground" which could result in a disproportionate property division.

Most of the time, however, this is not what happens in a divorce!  A party does not have to worry about losing parental or property rights just because they want to separate and move out of the marital residence!!!!  This is true whether you are the wife or the husband.   Please note, however, that if you are the wife and you move out, you should make sure to take your children with you or you will have a custody fight on your hands!!!!

You can even buy a new home before your divorce is finalized.  Be aware, however, that it will be considered "community property."  This means that your spouse is entitled to his or her portion of this asset, unless they "agree" that it can be considered "yours!"  This is not usually too big a deal either way because the house is valued at fair market value minus remaining debt and houses do not usually appreciate that much in the six month period it normally takes to get a divorce, even allowing for the mortgage payments which were made.

However, if the spouse paid cash for the new house, the other spouse may want his or her "half" paid back to them in cash or by trading more of a different asset.

People often confuse the concept of who has possession of an asset after separation with the concept of who owns that asset.  Whether or not you have a formal document describing  your "temporary" right to possession of a home, car, furniture, bank accounts, etc. (ie. Temporary Orders), these items over which you have control while your divorce is pending still actually belong to both of you!!!!

Property is divided (for the purpose of ownership) as of the date of divorce.  While it is true that, as a practical matter, parties often keep those items which are in their possession at the time of divorce, this does not mean that your partner will not expect you to compensate them in money for their portion of the value of the asset.

When you divide your property in a divorce, you do it by adding together the value of all of your assets and debts and then you usually divide them on a percentage basis (ex, 50%, 60% or some other percentage).

For example, if I keep the Lexus currently valued at $70,000 (value minus any debt), then IF we are doing a 50-50 property division, my spouse will expect an extra $35,000 from somewhere else.

If my spouse keeps the house which has a value of $500,000 (fair market value minus mortgage owed), and he has a 401-K valued at one million dollars, and we are doing a straight 50-50 property division, then I would expect (just considering these assets alone) an extra $250,000 from somewhere because he kept the house.

Since I plan to get $500,000 from his 401-K (50%) anyway, it would be a common solution for me to get $750,000 from his 401-k.  This reflects my half of the 401-K plus the $250,000 I was entitled to because he kept the house.

Of course, there are other ways to accomplish the property division -- but this is meant to show you an example of how this process works!!!

If you have kids and you move out of the house where they live, you will be expected to pay child support while the divorce is pending, and of course afterwards as well.

Child support is based on your income alone, and your spouse's income is not a factor in Texas.  This is true even if your spouse earns substantially more money than you do!  You should continue to visit with the children whether or not you have a formal visitation schedule!  If you do not do so, you run the risk of losing your visitation rights or in having them modified to be more restricted than is normal.

The Court expects the parties to both be able to survive financially while the case is pending.  This may mean that you need to give your spouse financial support in addition to child support.  If you are the party who needs additional assistance, we can discuss with you how this negotiation works!

Contact us at 281.550.6650  for a free divorce consultation to learn more about your rights as the party who needs help and your obligations if you are the party who has the larger financial income.

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