Legal separation is not available in Texas. Therefore, couples who would like to terminate their marriage formally must follow the state’s divorce procedures. However, the law does permit couples to live apart and make temporary arrangements while a divorce is in progress. Temporary agreements may cover a variety of issues, such as property division and alimony.
Texas law also allows couples the right to reach an amicable settlement divorce settlement agreement that works for their family. If the agreement is fair to each party, a judge approves it and incorporates it into the final judgment of divorce.
If a couple wants to separate without divorcing, they may separate informally by using other approaches that work under Texas law. Keep in mind that Texas does not recognize any form of separation, formal or informal.
Therefore, if spouses are still married but living apart, under Texas law, any assets acquired during the separation are community property. This means the property is owned by both spouses equally. Both spouses remain legally responsible for any debt that either spouse incurs.
For couples with children, a parent can file a special request called a “suit affecting the parent-child relationship.” This asks a court to determine child custody, visitation, and child support outside of a divorce proceeding.
Once the court finalizes a parenting plan, if the parents wish to modify the arrangement, they must petition the court for a change. One spouse may file a suit affecting the parent-child relationship, and the other spouse then file for dissolution of the marriage. If so, a court merges the two filings into the divorce case.
Another way to obtain a kind of separation under Texas law is for the spouses to negotiate a partition and exchange agreement. In this agreement, the couple distributes their community property assets between them, so the assets become the separate property of one spouse or the other.
The spouses may decide later to get a divorce. If this is the case, the court will not divide the property allocated to each spouse as their separate property under this agreement, because it is no longer community property.
One caveat is that if the spouses reconcile, they must amend or terminate the agreement if they wish to void it. They cannot simply assume that property that was made separate will automatically become community property again. It does not.
There may be issues if the spouses get back together and they do not terminate their original partition and exchange agreement. For example, if one spouse later dies, the property that belongs to that spouse per the agreement would not automatically come to the other through the law of intestacy.
It is important to keep in mind that if the property is separate per the agreement, the court would likely transfer the assets to the heirs of the spouse who owns it as their separate property.
Many people think that the date of separation has some legal significance. However, in Texas, separated spouses still remain legally married, regardless of the duration of their separation.
There is no special legal status associated with being separated in Texas, and a couple is either married or not married. The court does not weigh whether they reside together or not. It is a personal matter between the spouses and not a legal one.
However, there are several other options, especially if a couple separates in anticipation of a divorce. Many of the same goals of a legal separation can be achieved through the following:
- Temporary orders;
- Protective orders;
- Suits that affect the parent-child relationship;
- Separation agreements.
The above options may have effects similar to those of a legal separation as they can have an impact on child support, alimony, visitation, child custody, and other issues before a couple finalizes their divorce.
How Does Marital Property Work in Texas?
If a person separates from their spouse in a state with legal separation, any property or debt they acquire after the separation is not community property. In Texas, however, living separately is irrelevant to the status of property. Property that spouses acquire while still married, with a few exceptions, is considered community property even if the spouses live separately.
This can be avoided if the spouses both sign on to a partition and exchange agreement. This document is a contract in which community property assets are divided between the spouses. The agreement may also provide that property either spouse acquires while separated is their separate property. It would also be wise for them to agree that all debt each spouse incurs while they are separated is the separate responsibility of the spouse who incurs the debt.
This contract should remain effective in the event the spouses get divorced. However, it is important to remember that the agreement remains in effect if the spouses reconcile. So, if the spouses do reconcile, they would need to amend or terminate the partition and exchange agreement to return to a marriage governed by community property law with jointly-held assets and debts.
A couple in this situation might want to consult a Texas legal separation attorney for guidance.
How Long Can I Be Separated?
Typically, there is no limit to how long spouses can be separated in Texas. It is entirely a matter of personal choice. The marriage continues until one or both spouses seek a divorce or one of the spouses passes away. However, the only exception is in the case of an informal marriage, which is a common-law marriage in Texas.
The parties may be “informally married” under Texas law, meaning the parties were not married by license but agreed to be married and thereafter lived together openly as a married couple in Texas. If so, a person must seek formalization of their marriage within two years after they separate. A failure to seek formalization of an informal marriage within 2 years of separation creates a legal presumption that a person has never been informally married at all.
This could have an effect on the status of property that the couple acquired while informally married.
What Is a Separation Agreement?
A separation agreement is a binding contract for spouses who no longer wish to live together but are not interested in a legal divorce. A separation agreement details the rights and duties of the parties while they are living selectively. This concept is similar to a legal separation because it may provide for visitation, financial support, and property rights.
The challenge is that it can be difficult to enforce the terms contained in a separation agreement because Texas does not legally recognize a separation. And, there is no formal order for child support issued by a court that a person could obtain in a final decree of divorce.
In this case, a person would have to prove that there is a gross abuse of the written terms or complete neglect by the other separated spouse. If a person could meet the burden of proof, then they might get a court to consider enforcing the agreement by compelling their spouse to follow the terms.
However, it is also true that a court might not enforce a couple’s separation agreement. So it would only have an effect if both spouses voluntarily respect it.
Another common challenge is that couples often use a separation agreement as a “placeholder” for divorce. They would rather not go through the time, effort, and expense of a divorce. They might want to retain the tax benefits of marriage. Or, they would like to save money, or they have another motivation to remain separated but not divorced, e.g., access to health insurance through one spouse’s employer.
In this case, courts do not look favorably upon couples who enter into separation agreements without taking any formal steps toward divorce. If a spouse asks a court to enforce a separation agreement, the judge would ask what action they have taken to pursue a divorce.
If the person cannot show that they are on the path to a legal divorce, a court would question the validity of their separation agreement. Then, the person might not receive the outcome they want. If a person believes they might overcome these obstacles and want to enforce a separation agreement, they should seek legal advice for their case.
What Is a Trial Separation?
Spouses may choose to live separately on a trial basis, but this is a completely personal decision on their part. They would simply choose to live apart from each other, either for a specified amount of time or indefinitely. Many couples use a trial separation to reassess the state of their marriage and to determine what steps they should take in the future with respect to their marriage.
Again, they should keep in mind that any agreement about their separation that they make may not be enforceable in a court of law. Their choices are purely personal in nature and not anything upon which a court would act.
In most cases, the spouses may enter into an oral agreement for the terms of the trial separation, such as payment of financial support by one spouse to the other or visitation of the children by one parent. The court does not monitor trial separations. Therefore, if the couple does not reconcile, they would then need to decide whether they should file for divorce or a suit affecting the parent-child relationship and/or a partition and exchange agreement.
Do I Need the Help of a Lawyer With My Legal Separation Issue in Texas?
If you are thinking of separating from your spouse, you should consult a Texas family lawyer for guidance as to how best to protect your rights.
A separation might affect your rights to property or your obligations for your spouse’s debts. It is best to know what all the implications might be. A Texas family lawyer can discuss all of the pros and cons of legal separation. LegalMatch.com can connect you to a Texas lawyer who can guide you toward the best options in a separation.
