Overview of Legal Separation in Texas: What You Should Know

The Truth About Legal Separation in Texas

Per common law, the only way for a married person to legally separate from their spouse is through a legal divorce. Although Texas law does not legally recognize separation, you can, in some instances, file for a "separation agreement," which outlines the terms of your separation. You may also find that people refer to one or both spouses "legally separated" while awaiting a divorce to be finalized.
However, this doesn’t mean that a legal separation exists. In Texas , legal separation is nothing more than a euphemism for living apart from one’s spouse. It does not shield you from your spouse’s debt, end support obligations, give you an "estranged" name, or make you divorced.
Though pending divorce may act as a separation, it is important to bear in mind that it is a proceeding for divorce—not separation. This means that the ultimate goal is to get the marriage legally dissolved.

Reasons to Pursue Legal Separation

There are a variety of reasons why some couples may seek legal separation instead of divorce. One of these reasons is religious beliefs. Certain religions, such as Catholicism, view divorce as a sinful act. While church teachings generally allow for a legal separation, they do not condone a remarriage. It is to be noted, however, that many religious leaders specifically reject separation as a substitute for divorce.
Another reason may be financial matters. Couples may choose separation to maintain their status as a married couple for the sake of employing financial strategies that are important for their family unit and for their tax situations. Separating rather than divorcing can also keep a couple within the realm of certain insurance policies, which are generally available only to legally married couples.
Another category of reason may be work-related. In certain instances, a person may feel that his or her job may be affected by divorce or remarriage, so the legal separation process may simplify this. The couple may also have children of adult age who still live with the spouses and do not want a divorce. While it is not all that common, some couples who live in an unstable area where acts of violence or persecution might befall the unit may choose to separate rather than divorce to protect their standing as a separated couple rather than a divorced couple.
On the other hand, some couples separate merely for the shock value. They hope that separating may bring one or both of them to reconsider and decide that the marriage is worth saving. This is a relatively common reason to pursue legal separation.

Legal Separation Alternatives in Texas

Legal separation is a term that refers to a court-sanctioned decision that terminates the ability of one spouse to manage the joint property without the other spouse’s agreement. A judge will issue such a decision if the cooperative use of community property ends up causing harm to an equitable division of property.
In Texas there are two main alternatives rather than a court-sanctioned legal separation.
Separation Agreement
Couples who do not want to file for divorce may sign a written separation agreement that allows them to divide their assets and debts. This separation agreement is a legally binding contract that is enforced through the court system like any other contract. If one spouse doesn’t live up to the terms of the agreement, a divorce suit may be necessary. Therefore, the couple still will eventually divorce, making this an alternative to divorce that is temporary rather than permanent.
Temporary Orders
Couples who are sure they want a divorce but who are not in agreement about the terms of the divorce could choose to file a family law lawsuit in which the couple obtains temporary orders. Temporary orders are issued by a judge who holds a hearing that allows both parties to present evidence about the situation. Temporary orders can involve any temporary arrangement in the divorce and can address property, child custody and support, spousal support and other issues. Temporary orders last until the divorce is finalized or unless there are new temporary orders issued while the divorce is pending.
In many North Texas divorce cases, the couple moves into separate residences and divides their property without any orders. In this case, each party is advised to get their own attorney and have a written partitioning agreement that divides the assets and debts. This can help avoid conflict over how the property was divided down the road.
None of these options are likely to be as satisfactory as a legal separation, but they do allow couples to live apart while still moving forward with the divorce.

Establishing a Separation Agreement

In the absence of a legal separation in Texas, an alternative legal tool that couples can use to divide their assets and determine their obligations to each other is a separation agreement. A separation agreement is a legally binding contract between two spouses concerning the termination of their marriage. Couples often execute a separation agreement if they anticipate a divorce in the near future, but only need a little time apart before proceeding with the divorce.
To begin the process of creating a separation agreement, the spouses should make a list of their assets and debts. Next, the spouses should determine who will get what asset. For example, one spouse may want to keep the home, while the other spouse may want to keep the bank account. In addition to spousal property, the spouses should also include a list of each spouse’s debts in the separation agreement. Separating the debts and assets in writing serves as a basis for filing for a divorce later on.
The separation agreement will also include child custody arrangements if there are children involved. For example, the spouses might decide to alternate weekends with the children. It is recommended that the spouses not finalize the separation agreement until they execute a Child Support Obligation Worksheet, which calculates how much each spouse should pay in child support. A separation agreement also needs to address health insurance matters. Specifically, a separation agreement should state whether the health insurance policy provides coverage for dependent children and whether one parent will pay the cost of the coverage.
The separation agreement is legally binding after both spouses have signed it. In order to enforce the terms of the separation agreement, however, the spouses will have to incorporate the terms into the final divorce decree. In that sense, the separation agreement is a precursor to the divorce decree.
Legal separation is not an official proceeding in Texas. That said, it is possible to use a separation agreement. If the spouses finalize the separation agreement, they can then proceed with the divorce process.

Temporary Orders as an Alternative

While legal separation is not permitted in Texas, legal separation truly isn’t even necessary in most cases. Approximately 99% of our clients that retain us either still remain in the home during separation or move into their own apartment or another home that they have leased. If you have significant assets, you and your spouse should enter into an enforceable agreement where you agree to remain separate and apart, with specific instructions over what each party should do or not do during separation. However, if you have minor children, you really do not have the option of remaining separated for any extended period of time without a court order addressing custody issues (i.e. child support, possession and access, health insurance and medical expenses, paying daycare, school tuition, division of expenses, and the like). If you and your spouse attempt to separate without some written agreement, or having an enforceable agreement, you could be putting yourself at risk if your spouse decides to move, refusing to pay support for daycare, or days when you have the children without any notice. You will also have absolutely no leverage against your spouse, or your spouse’s attorney, in negotiating a settlement. In order to establish some certainty and security, Temporary Orders can be utilized by most families during a marital separation.
Temporary Orders are orders that are signed by judges to control your daily life while you are preparing for your divorce. Temporary Orders will not last forever and they are limited in scope. You should use Temporary Orders to control your daily existence and your children’s lives while your case is pending. They usually last about 3-4 months but they might last longer or less depending on the circumstances of your case and how long it takes you to get ready for trial. Your Temporary Orders can address just about anything and everything, but they usually cover issues such as living arrangements, vehicle use, bank account usage, debt issues, checks on how visitation and child support are working, exclusive use and possession of the residence, who gets what car, who pays what bills, food allowance, who gets the kids for each holiday and summer vacation and when, how often and when should the children be in counseling, child support and medical support, and whether both parties should attend a co-parenting class . Temporary Orders are not divorces. They are not divisions of your property. They are not determinations of fault. They are simply an orderly way to deal with the interim before the divorce is final.
One of the benefits of Temporary Orders for many spouses is the filing of temporary applications for spousal maintenance. Applying for spousal maintenance under Texas law means that you will not have an entitlement to spousal support following your divorce. Many times, Temporary Spousal Maintenance is paid in large amounts but only for a short duration of time. For example, you might have Temporary Spousal Maintenance paid to your spouse of $2,500 per month for six months (or until the assets are divided in the case). Your spouse may be entitled to this amount, but nothing more, if they do not have substantial separate income. Many spouses will utilize this as a "trial run" to make sure the other spouse will pay what they say they will pay, or that they really do rely on what they say they rely on to pay support. There is a risk that child support, health insurance, and daycare costs are so high that you would lose a substantial portion of whatever monthly income you have. There might also be a risk that spousal maintenance is not awarded, since they are not automatically awarded in every marriage and the standard is high, so you might really not want to pay a large amount in Temporary Spousal Maintenance only to have a judge say you don’t have to pay spousal maintenance at all.
Attorney’s fees can also be ordered in Temporary Orders. The payor of attorney’s fees is entitled to seek these fees from the other spouse in their contribution in the case. This might be an appropriate situation for attorney’s fees, or it might not, but there is often a willingness on the part of the parties to make the proper contribution from the temporary pot of funds.

The Effect on Property and Custody Arrangements

For a period of time, a couple living in Texas may be separated with a written separation agreement controlling their finances. These agreements are binding under Texas law and the terms of such agreements may differ from the law as to property division upon divorce. Many of the issues addressed in a separation agreement include how property, assets, and debts are to be divided. This is very similar to how property and debts are handled in a divorce proceeding, but a separation agreement can also deal with a number of things that would not be addressed in divorce, according to law or tradition. Issues the couple wants to address include maintenance, living separate and apart from each other, living expenses, decision to live separate and apart, parenting patterns, and obligation for any debts, liabilities, and other obligations.
It is important to note that a separation agreement is not a substitute for a divorce. One spouse cannot obtain a divorce without the other spouse acquiescing to it, either by agreement or default. Additionally, a separation agreement is only enforceable upon default, i.e. if the other spouse breaches the agreement.
Separation agreements may also require support. Texas law recognizes the entitlement of support during a legal proceeding related to divorce. This is called spousal maintenance in Texas and the entitlement of a spouse to receive support terminates upon the remarriage of the spouse receiving spousal maintenance.
A court always has the power to grant temporary relief in a divorce case. These temporary orders resolve issues of temporary spousal maintenance or support during the divorce until a divorce trial can determine the distribution and payment of property assets, debts and liabilities, if necessary. Temporary orders also resolve issues involving children from the marriage, such as child custody, placement and child support.
The temporary orders govern and establish the rights of the spouses and, if applicable, the parents, during a pending divorce. This may result in an unequal distribution of marital property in order to meet the needs of the parties and children. The distribution and division of property under the temporary order will not be binding on a final property distribution under the divorce however. The temporary order must be re-assessed if circumstances change. A request to modify a temporary order must show that a substantial and continuing change in the circumstances existed, and that a modification of the order would be in the best interest of the child/children.

Legal Help: Why You Need It

A legal separation in Texas does not automatically grant you and your spouse legal separation, however, there are many things that need to be handled before the separation is permanent. Seeking professional legal guidance can help you determine if this process is right for you both and help simplify the process for you. There are professionals, such as attorneys in Fort Worth TX, who can assist you in determining what your rights are in this situation . If parents are involved, an attorney can assist you in negotiating a parenting plan that works for you both until your dissolution is final. It is important to remember that being legally separated does not automatically mean you are heading to divorce, it simply means you officially live apart and have no obligation to be together, while still being legally married.