A Guide to Legal Separation in Texas
Legal separation of marriage in Texas is similar to divorce in that it is a means of dissolving or ending a marriage; however, legal separation does not require the end of a marriage, it merely requires the spouses to live apart. This is accomplished through a process similar to divorce: an enforceable agreement between two spouses, one spouse files a petition with the Texas court system where the law is supported, and a hearing occurs where the condition of the family is evaluated and the agreement is either approved or denied.
While legal separation provides an alternative to divorce, it does not mean that the marriage is over . Legal separation preserves the marriage and allows the separated couple the opportunity to work towards reconciliation, if it’s in the best interest of the children. For example: if the husband is having an affair with his secretary from the office, and the wife works outside the home, a legal separation agreement can protect her interest in the marital residence as well as entitle her to a portion of his disposable income until the children reach the age of 18 years.
In Texas there are legal terms used when discussing separation of marriage and in legal pleadings: legal separation, temporary orders, suit affecting the parent-child relationship, and partition of property.
Alternatives to Legal Separation
While individuals often think that Legal Separation of their Marriage is the best option to begin "living apart", some may not really know what their options are. Some people may think that it is still important to be married for health care benefits or tax purposes (an unfortunate reality of our current system). Other people may just want to avoid a "label" of Divorced or Legally Separated. The fact of the matter is that a Legal Separation in the State of Texas is not recognized and people who are "legally separated" are considered Married under the laws of the State of Texas.
Some Alternatives to Legal Separation of your Marriage in the State of Texas are "Informal Separations". That could be anything from "living separate" in the same residence to having two or more homes. Some will move out of the marital home into an apartment or rent another home. Others may live with friends or family members. These informal arrangements do not involve the court.
If you really need the court involved, there are some legal arrangements that can be done by agreement. A "Partition and Exchange" Agreement will actually take the Community Property assets and formally separate them by each party’s consent. Or a "Bifurcation" Agreement will allow the Judge to grant the divorce Decree itself, but hold off on issues of property, children, etc., until a later date if the parties want the Court’s involvement. A "Mediated Settlement Agreement" can also accomplish these results and allow the parties some control over timing and issues. All of these agreements are available to people either who are already divorced (decree has been signed by the Judge) or who are still married.
Pros and Cons of Legal Separation
The most evident advantage of legal separation in Texas is that you and your spouse have the opportunity to live apart with clear legal protections. A legal separation can help you and your spouse establish spousal support, child custody, and child support before you file for divorce.
There are financial benefits to a legal separation. For example, you might be able to negotiate a temporary spousal maintenance agreement before filing for divorce. Legal separation will also allow you or your spouse to retain medical coverage under your spouse’s policy. Both of these factors can lead to substantial cost savings, which you can then leverage in the divorce process.
The period during which you and your spouse are under a legal separation decree could also give you time to pursue counseling, resolve your differences, or simply take time apart before deciding to end the marriage. As is the case with mediation, the ability to spend time apart could provide you with the clarity you need to make the right decisions about the future of your marriage. Unfortunately, there are several drawbacks to choosing legal separation over divorce. These drawbacks may provoke you to choose divorce over legal separation.
While you might be able to work out some terms during legal separation, you ultimately still need to work out an agreement after divorce. In effect, there are few legal advantages to legal separation. You are still considered legally married when filing taxes and when accessing life and health insurance policies. You and your spouse also share legal and financial responsibility for any debts accrued during the separation.
Most importantly, a legal separation does nothing to protect you if your spouse decides to engage in an extramarital relationship or if he/she tries to default on bills and debts. In other words, you have very few legal protections, which means that divorce is likely in your near future. Some couples choose legal separation because they hope that the temporary separation provides valuable time to work out terms of a divorce without the pressure or stigma of proceeding with divorce right away. Unfortunately, what happens when you and your spouse can’t agree on terms after legal separation? Like mediation, legal separation is not legally binding, which means that you can either continue extending the separation or move forward with divorce. While there are several potential benefits to legal separation, there are often no compelling reasons to ignore divorce.
How to Go About a Separation Agreement
When planning a separation agreement, it is a good idea to have a third party draft it for your records. The separation agreement is essentially an informal divorce and at times is not effective as a part of the divorce if you do not formalize the agreement into a signed settlement agreement prior to the divorce.
Although there is no legal requirement for the subsequent divorce proceeding to follow the terms of a signed written agreement, a written agreement signed prior by both parties is enforceable so long as both parties voluntarily consent to the agreed terms at the time of signing. This means that any side agreements not included in the written agreement will not be enforceable unless they are incorporated in the formal terms of the written agreement. If the parties later have a change of heart about the terms of the separation leading up to the final divorce, there is the potential to rescind the agreement leading to a protracted litigation over the terms of the separation agreement.
Another method sometimes used is the informal separation where the parties decide to separate without officially drafting a written agreement. In these cases, the separate finances and living together in the same residence becomes problematic when a consolidated agreement is attempted later. In this informal method, there is no requirement to divide property, debt, spend time with the child, share health care coverage, contribute support, etc.
Courts in Texas process formal agreements as an enforceable contract where the terms governing your rights and responsibilities as to your relationship are negotiated and agreed upon in writing. There is an exception to this where the court finds the terms of the agreement to be without legal effect because they are not in the best interest of a child. In order to enforce the terms of the separation agreement with regard to the child, the agreement must be approved and signed by the court at the time of divorce.
Separation agreements are not uncommon in Texas and are generally acceptable when the parties have agreed to divide all property, debt, and decide on provisions for the children in writing. Typically, lawyers help separate property, debt, and provisions for the children in preparing the written agreement or final divorce decree.
Legal Considerations of Separation and What to Expect
The legal rights and obligations of parties entering into a legal separation in Texas are essentially the same as those entering into a divorce proceeding, however, for the proceedings to be considered a legal separation, Title 1 of the Family Code does not have to be initiated in a court of law. Parties can remain informally separated for years. However, informal separation does not necessarily carry the same legal weight as a formal legal separation might afford the parties. There are no provisions in the Texas Family Code that govern the procedures to create a legal separation because to do so would be in direct conflict with Title 1 of the Family Code.
Similar to a divorce proceeding, property and debts acquired after the date of separation are generally awarded to the spouse they are acquired by, while property and debts acquired prior to the date of separation are awarded to both parties, with some minor exceptions. Be advised though, that potential future income, such as commissions or bonuses related to jobs and contracts , are often awarded to both parties as well. Child and spousal support may be awarded during a period of separation depending on the circumstances, but cannot last longer than the duration of separation. For all intents and purposes, orders of protection, custodial provisions, and visitation requirements are all similar to those ordered in a divorce proceeding with a few noteworthy exceptions. That is, when it comes to child custody and child support, legal separations do not carry the same legal weight as a divorce proceeding, in terms of the impact on parental rights and obligations, nor do they supersede a previous child custody or child support order entered by the Court. In other words, even during a period of legal separation, the parent with exclusive right to determine the primary residence of the child in the previous order is still entitled to that right, provided that no specific terms were agreed to in writing. However, if a contract stipulating otherwise exists, the terms of that agreement will usually be upheld; more importantly, such an agreement should be carefully evaluated to ensure that it is written so as to protect your best interest.
Why Separation May Lead to Divorce
In Texas, there are no formal procedures for transitioning from a legal separation to a divorce. If you have an informal agreement with your spouse, you need to have new agreements for the divorce. If your legal separation is formal and you have a binding agreement, then you will have to renegotiate or change the terms as needed. For instance, if you agreed to pay the mortgage on your marital home during the legal separation, it is likely that the ordering spouse is not able to stay in the house past the date of the divorce, so a new agreement may be necessary. Professional support (lawyer, therapist, mediator) may also facilitate reaching new terms. After you have a formal agreement, then you will retain your untitled properties after the filing is official. On the other hand, if you have a divorce petition prepared during the legal separation, you must file for divorce before the legal separation can end without mutual consent. Law requires spouses to remain separated for at least three years before they can automatically reconcile without divorce. It’s important to sign and file an agreed interlocutory order to protect your legal rights in the meantime.
How an Attorney Can Help
In the legal landscape of Texas, most individuals are unaware that a legal separation of sorts is available, namely through a "Limited Divorce." A legal separation is not formally recognized as a marital status in Texas, but through a Limited Divorce (or Legal Separation), an individual can live separate and apart from their spouse while remaining legally married. This means that through this procedure, a spouse is no longer liable for the other spouse’s post-separation debt, can no longer make claims on the property owned by the other spouse, and the Court can also determine the division of assets and liabilities between spouses as well as grant limited spousal support, if applicable. For those who do not wish to live under the same roof with their spouse but do not want to divorce, this is an available option.
Although a Limited Divorce may be a viable option, it may be worth it for individuals to still explore divorce options with their spouse to avoid the somewhat long and drawn-out process of a limited divorce . When spouses agree to a divorce, or even have an informal separation, it is a much easier process, and parties can enter into a Mutual Separation Agreement or an Uncontested Divorce.
While there are benefits to being separated from your spouse without the hassle of a formal divorce proceeding, legal advice and assistance is highly recommended in order to determine if these options are right for you. Preferably, individuals should consult with attorneys who have experience in family law in their area, as they can analyze your situation and determine if a legal separation is an advisable option. These attorneys can also put you in touch with any divorce alternative service organizations, if applicable, that would be able to assist you with your case, or even help you with mediation or collaborative law options which would be considered prior to filing for a legal separation.