What is Legal Separation in Texas?
In Texas, "legal separation" is a term most often used informally. In legal terms, there is no formal "separation" period required prior to filing for divorce. Meaning, if you wish to divorce, it can be done immediately after the first day of marriage. However, legal separation is a common period that spouses in Texas may opt for prior to filing a divorce. With legal separation, spouses are still legally married, but may have separate lives and live in separate households . Though, if you do decide to separate, you should understand that it is not legally binding between both parties. If either spouse chooses to break the "separation" and pursue a divorce there is no recourse to prevent such action, unless a contract (a legal separation agreement) is signed and filed with the court, which would deal with the separation in order to be recognized. Keep in mind, if one spouse does not want to separate, then there is no requirement for both spouses to be on board to separate or pursue a mutually agreed upon separation.
Legal Separation in Texas: Separation vs. Divorce
One of the most important differences between legal separation and divorce is that legal separation doesn’t necessarily terminate the marriage. In fact, it’s a temporary process that is designed to financially separate the spouses, determining how they will coexist while living apart. Legal separation is also an option for couples who want to consider the prospect of divorce without taking the jump. Legally separating allows Texas couples to retain many benefits of their marriage while ensuring that they are legally and financially separated. For example, legal separation doesn’t terminate the couple’s insurance policies or retirement benefits, allowing the spouse to maintain their health and provide financial support to their spouse.
Another main difference between legal separation and divorce is that legal separation is an optional process. However, divorce is final and typically removes all ties between the spouses. On the other hand, legal separation is more like a tool to ease into divorce. It’s not uncommon for couples to legally separate, only to reconcile and remain married.
There are also significant differences in the time frame for the end result. While divorce can sometimes take years, legal separation is a temporary status that may last only for a few months. Of course, there are exceptions and some legal separations may last longer, especially if the couple needs to linger in the middle ground before deciding to divorce or reconcile.
The legal issues surrounding legal separation are similar to divorce, including child custody, child support, division of property and related assets, and much more. The biggest difference is that the final result of legal separation isn’t divorce, so an attorney offers services to either negotiate the legal separation agreement or complete the divorce at a later point.
How to Get Legally Separated in Texas
Pursuing legal separation requires filing a petition with the Texas courts. If a spouse files a petition first, that spouse is the "petitioner" and the other spouse is the "respondent." If both spouses agree to file together for a joint separation, their petition is just called a "petition."
The petitioner must give the court information about why the couple needs legal separation under Texas Law. Reasons can vary, although some common reasons include:
The petitioner must notify the other spouse of their intention to legally separate by having them served with the separation petition. In cases of joint petitions, no service is necessary and both spouses file the separation together.
Once notified, the respondent must file an answer to the petition within 20 days or face a possible default judgment against them for the info in the petition. A petition for separation must include the following:
It is also important that the petition include a request for a temporary order to govern the couple’s finances and who occupies the home during the separation. The court must have jurisdiction over the property before making a temporary order on possession. This temporary order will remain in effect until the couple files for divorce or the spouses agree to change the order.
Advantages and Disadvantages of Legal Separation
Deciding to separate from your spouse can be a difficult choice. You may believe there are benefits of remaining legally married while living apart, but seldom do spouses who are separating for the first time understand the numerous complexities involved in this decision. Marital separation should be a temporary arrangement until you and your spouse can resolve your differences, yet many couples find themselves in a legal separation for several years.
While not as permanent as divorce, a legal separation in Texas is still binding and requires both spouses to enter into a legal agreement on a number of factors. For some couples, that legal separation can bring them closer to an amicable divorce, while for others, it may solidify their differences and lead to an extremely contentious divorce. Either way, the majority of couples who separate will go on to terminate the separation with a final divorce.
Even so, legal separation in Texas offers some distinct advantages that you should consider before proceeding with a divorce. First, legal separation will allow you and your spouse to stabilize your lives before moving forward with the divorce process. This process will allow you to make decisions about where you will live, whether there will be spousal support spousal support payments, how you will handle child custody or time-sharing, and dividing up your assets and debts. By doing so while you are legally separated, you can reduce the chances of loss or theft of property, minimize the risk of financial or legal penalties, and avoid damaging relationships between you, your children, and your spouse.
Your separation agreement can also address matters like health care, retirement, and education. For many couples, these arrangements help to avoid or lower the chance of a protracted divorce. However, you may still choose to pursue a divorce after some time has passed. Even though you are legally separated, you or your spouse can still file for divorce while the separation agreement is in effect.
Legal separation also has a number of potential disadvantages. While these agreements may help keep the peace between you and your spouse, they may also allow you to avoid telling the truth about why you or your spouse want a divorce, which can lead to a longer process or extending the marriage unnecessarily.
It can also be very difficult to maintain a marriage license if you and your spouse are not living together. Some people ultimately reconcile, but for most couples the separation is an indicator that they should move toward a divorce.
Separation, Children, Custody and Support
The most significant implication of legal separation in Texas is likely to be the effects on child custody and support. Because legal separation in Texas does not end a marriage, parents remain joint managing conservators during the legal separation. (Joint managing conservatorship is the term for shared custody in Texas). They will continuing to share legal rights and responsibilities, including making decisions about their children’s education and medical care.
However, the parents’ physical access (possession) to their children after a legal separation may be determined by a temporary spouse maintenance agreement. Alternatively, if there is an existing child custody order, the spouses might modify the order to include appropriate temporary terms for possession during the period of separation. Such a modification might be either by agreed order or by sought on temporary orders .
In Texas, child support is typically set in accordance with the percentage of the noncustodial parent’s net or take home income. Child support is generally determined based on the number of children of the relationship and the noncustodial parent’s net resources. For example, a noncustodial parent paying child support for one daughter would pay 20% of his net resources. If the couple were to have another child, the dad’s child support payments would increase to 25% of his net resources. This guidance applies whether a child support order is entered in a legal separation agreement or in a divorce. For some parents, legal separation might benefit them. Unless the parties will be divorcing immediately and cannot wait for a final divorce decree to enter an agreed terms for child custody, child access and child support, a temporary marital maintenance agreement might be a good alternative for them and their family.
Financial Issues with Separation
Carefully addressing financial issues is one of the most important aspects of divorce. So it is essential to understand how legal separation will affect property division and spousal support going forward.
Property division. There are no provisions in Texas statutes for court-ordered distribution of assets or liabilities outside the context of a divorce. Thus, property division at the time of legal separation is voluntary and by agreement. A separation agreement must be signed under oath and may be enforced later just like a court order. Of course, a party to an agreement can still seek court-ordered relief such as asset division, during a divorce.
Although community property laws do not apply to a legal separation, one exception may occur when spouses have children. A court has the power to declare primary custody to one spouse along with child support obligations. Spousal support from one spouse to the other cannot be ordered unless there is a final divorce order requiring such payment.
The parties’ separation agreement may be enforced through rescission or partition. Rescission returns the parties to their pre-separation condition. Partition permits a court to divide property that is hard to separate, like a business, according to value rather than ownership. Partition of property is most likely to occur if a business continues to produce income during a separation. If there has been significant economic change since separation, an ex-spouse seeking rescission or partition should present adequate evidence of the changes to the court.
In practice, spouses will not achieve the body of law required for partition or rescission. To find out the consequences of a legal separation in your particular fact situation, you should contact a lawyer who is experienced in separation agreements and related issues.
Spousal maintenance. Obviously, the point of legal separation is to provide temporary protection while the relationship is transitioning from marriage to divorce. In legal separation, the spouses will go on living apart from one another, perhaps in two new relationships, for an indeterminate period of time. Like divorce, legal separation requires honest and accurate disclosure of financial information to the other spouse. Historically, however, the court is unlikely to require post-separation assistance of one spouse to the other. Spousal support is unlikely to be awarded after a breakup is agreed to but before it is approved by a court.
Separation in Texas: Other Options
There are also different alternatives to a legal separation in Texas that do not involve going to court. For example, parties who are separating may informally separate; meaning they live apart from each other on separate premises. While they may be living separately, they are not legally separated. Thus, they have not gone through the Court process of establishing the terms of their separation and divorce.
Parties may also consider signing a separation agreement which may outline how the community estate will be divided, as well as setting out other agreements, such as child custody, visitation, support, debt payment, and even alimony. A separation agreement is a contract between the spouses and is not filed with the Court. If the parties end up filing for a divorce and the Court has jurisdiction over the issues agreed upon in the contract, there will be a presumption that the Court should incorporate those agreements into the Final Decree of Divorce . However, a Court has the power to disregard the parties’ agreement if the Court believes that it is not in the best interest of the children or the Court deems the agreement is unreasonable or unfair.
Another option, which may or may not require the assistance of an experienced attorney, is a request for temporary orders during the pendency of a divorce. Temporary orders can help establish child-custody schedules, temporary support, exclusive use and possession of certain property, temporary visitation with pets, and many more types of orders. If the parties can agree on some of these issues, then the temporary orders can be superseded by a written agreement of the parties called a Rule 11 Agreement that is the agreement of the parties regarding temporary orders and can contain temporary agreed provisions regarding these issues. If an agreement cannot be reached, then the aggrieved party must file a motion for temporary orders setting out what relief they are requesting from the Court and a hearing will be set to determine what temporary orders should be put in place during the pendency of the divorce.