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abandonment of property

Abandonment of property (real estate or personal property) is a legal concept in property law, but has little application in the context of divorce or family law. For example, a spouse or domestic partner does not forfeit an ownership interest in the shared home or any of its contents by moving out of the home. But moving out of the marital or shared home may impact the court’s decision on who may occupy the home while the divorce is pending, and a person should consult with an attorney before making this decision.

A person moving out of the shared home under such circumstances should also be prepared to have limited access to the home and its contents—at least until the court issues an order granting the person access to secure personal property and documents.

In Texas, the concept of abandonment of property typically refers to the relinquishment of rights or interest in property without transferring them to someone else, and it is more commonly associated with real estate or personal property law rather than family law. However, in the context of divorce or family law, a spouse or domestic partner does not lose ownership interest in a shared home or its contents simply by moving out. Nevertheless, the decision to move out can influence a court's interim orders regarding who may reside in the home during the divorce proceedings. It is important to consult with an attorney before deciding to move out, as this action can result in restricted access to the home and personal belongings until a court order is issued to allow for the retrieval of personal items and documents. Texas courts aim to ensure a fair division of property during a divorce, and abandonment of the home does not equate to forfeiture of property rights in the divorce settlement.


Texas Statutes & Rules

Texas Family Code, Section 6.703 - Temporary Orders During Divorce Proceeding
This statute is relevant as it addresses the court's authority to issue temporary orders concerning property and residence during a divorce proceeding.

Under Texas Family Code, Section 6.703, during a divorce proceeding, the court may issue temporary orders as it deems necessary, including orders for the temporary use and occupancy of the marital residence. This means that if one spouse moves out, the court can still decide who gets to live in the home while the divorce is pending. The statute also allows the court to provide for the temporary use, possession, and control of other personal property. This can include granting one spouse limited access to the home to retrieve personal belongings, but such access would be subject to the specific terms of the temporary order.

Texas Family Code, Section 6.602 - Agreement Incident to Divorce or Annulment
This statute is relevant as it pertains to the agreement between spouses regarding the division of their property, which can include arrangements about the marital home and personal property.

Texas Family Code, Section 6.602 allows divorcing spouses to enter into a written agreement concerning the division of their property and the rights and obligations of each spouse while the divorce is pending. This agreement can address who may use the marital home and how personal property will be accessed or divided. If the court finds the agreement just and right, considering the circumstances of the parties and any children of the marriage, it may approve the agreement and render an order in accordance with the agreement. This means that if one spouse moves out, they can still negotiate terms regarding the home and personal property through such an agreement.

Texas Family Code, Section 6.710 - Protective Orders and Family Violence
This statute is relevant as it discusses protective orders that can affect occupancy of the marital home in cases involving family violence.

In situations where family violence is a concern, under Texas Family Code, Section 6.710, the court may issue a protective order to prevent further violence. Such an order can include provisions that directly affect the occupancy of the marital home, such as excluding the alleged perpetrator from the residence. If one spouse moves out due to family violence, a protective order may be necessary to ensure their safety and could impact their access to the home and its contents.

Texas Family Code, Section 7.001 - General Rule of Property Division
This statute is relevant as it establishes the general rule for property division upon divorce, which includes both real estate and personal property.

According to Texas Family Code, Section 7.001, in a decree of divorce or annulment, the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage. This means that regardless of whether a spouse moves out of the marital home, they do not forfeit their ownership interest in the property. The division of property will be based on what the court finds equitable, which may or may not be influenced by one spouse's decision to move out.

Texas Family Code, Section 7.003 - Division and Disposition of Certain Property Under Special Circumstances
This statute is relevant as it addresses the division of property when one spouse has wrongfully disposed of property with the intent to defraud the other spouse.

Texas Family Code, Section 7.003 provides that if the court finds that one spouse has disposed of property with the intent to defraud the other spouse, the court may reconstitute the estate to include the disposed property. The court may also make an unequal division of the remaining property to compensate for the fraud. While this does not directly address abandonment, it is relevant in that it protects a spouse's interest in marital property if the other spouse attempts to undermine that interest by improperly disposing of or hiding assets.

Federal Statutes & Rules

Uniformed Services Former Spouses’ Protection Act (USFSPA), 10 U.S.C. § 1408
This federal statute is relevant in the context of divorce, particularly when one spouse is a member of the military. It addresses the treatment of military retirement pay in divorce proceedings.

The Uniformed Services Former Spouses’ Protection Act allows state courts to treat military retired pay as either sole or community property depending on the state law. This means that a military spouse's retirement pay can be considered in the division of property during a divorce. The act also provides a method of enforcing current and future child support and alimony awarded in the divorce decree, and it establishes a system for the direct payment of a portion of a military retiree's pay to the former spouse.

Violence Against Women Act (VAWA), 34 U.S.C. § 12291
VAWA is relevant in the context of divorce or separation when domestic violence is involved, as it can affect the occupancy rights of the shared home.

The Violence Against Women Act provides federal legal protections for victims of domestic violence, which can include provisions for housing protections. It allows victims to obtain court orders that can remove the abuser from the shared home and grant the victim exclusive occupancy rights, at least on a temporary basis. This can be particularly important during a divorce or separation when a victim needs to secure their safety and access to the home.

Servicemembers Civil Relief Act (SCRA), 50 U.S.C. §§ 3901-4043
This act is relevant for divorcing military personnel, as it can impact proceedings by providing certain legal protections to service members.

The Servicemembers Civil Relief Act provides protections for military members as they enter active duty. It includes provisions that can postpone or suspend certain civil obligations to allow servicemembers to devote full attention to their duties. In the context of divorce, the SCRA can provide a stay of court and administrative proceedings, which may affect the timing and conduct of divorce proceedings, including decisions about the occupancy of the marital home.

Economic Growth, Regulatory Relief, and Consumer Protection Act, Section 303
This section of the act is relevant as it amends the Truth in Lending Act to provide protections for borrowers who have entered into or are exiting a marriage or domestic partnership.

Section 303 of the Economic Growth, Regulatory Relief, and Consumer Protection Act amends the Truth in Lending Act to allow a borrower to release their ex-spouse from a joint mortgage under certain conditions following a divorce or legal separation. This can be relevant when determining the rights and responsibilities related to the shared home during and after a divorce.