Legal Separation or Divorce
In Texas, legal separation is a legal process by which a married couple may formalize a de facto separation. Although many believe there is no provision for legal separation in Texas, it occurs through the negotiations of a Mediation or Settlement Agreement. A Mediated or Settlement Agreement formalizes the separations of the spouses and determines the issues usually contained in a Divorce Decree, e.g., Child Custody, Child Support, Possession and Access, Medical Insurance, & Division of Property. A Decree of Legal Separation, however, is not available in Texas .
During the pendency of a Divorce, a Petition for Temporary Orders may be filed and a hearing may be held on the issues that would normally be heard at a final trial. A Mediated or Settlement Agreement could then be signed, resolving the issues while awaiting a final decree of Divorce. However, in this scenario, you are not legally separated, and remain married.
A Divorce terminates a marriage and requires a 60 day waiting period, beginning with the date the Petition for Divorce is filed. A Decree of Divorce resolves all issues during the marriage, and provides legal finality to the Divorce proceeding.
Does Texas Have Legal Separation?
Many couples wish to spend some time apart and live separately while they are working towards an end of a marriage. Others have to move out of the house for job-related reasons or some other reasons. There is no legal separation process that is recognized by the state. If you want to be separated you must file for divorce, but there are temporary orders that can be filed to separate the living arrangements for parties moving forward.
Texas has no process for legal separation, and a couple cannot avoid divorce by separating instead. A separation means more than one spouse is moving and leaving the house for a period, but it does not mean the marriage is no longer valid.
In most cases, the court will order temporary relief to treat some issues. The issues that may arrive with temporary relief are those that will carry on while the divorce is pending. Temporary orders can be used to order who gets temporary possession of the property or money, where a child will spend their time, and spousal support in certain cases.
When filing for divorce, the spouse moving to a new location can get an application for temporary orders in the divorce petition. The spouse filing for divorce simply states the relief desired in the petition for temporary orders, which is typically signed by the judge and ordered at the first temporary orders hearing.
The spouse who is filing for divorce can also request a protective order for domestic or family abuse. A protective order can protect a spouse and children from further abuse and allows the spouse who is being abused sole possession of the house if necessary.
Alternatives to a Legal Separation in Texas
In lieu of legal separation, there are alternatives available that permit the spouses to remain apart from one another without legally divorcing. These include temporary restraining orders, temporary injunctions, protective orders, and contractual separation agreements. Any of these alternatives requires an understanding of just what a couple needs for their unique situation.
A temporary restraining order is filed at the beginning of a divorce case. A temporary restraining order forbids certain acts by both parties until a temporary orders hearing can be held. It is a form of legal separation which is only temporary usually for 14 days or until a temporary orders hearing is held, whichever happens first. It is meant to maintain the status quo and prevent either party from doing something to diminish any community property. A temporary injunction is similar to a TRO. This type of relief is not available at the very beginning of the divorce process like a TRO. This type of relief is intended to maintain the status quo. This type of relief can last longer than a TRO. A protective order is an alternative to legal separation when a spouse has been physically or sexually abused. A protective order is an extremely powerful order of the Court. It may be obtained outside of the divorce process. A protective order orders an abuser to vacate a residence or limits all contact with the other party. The date that the protective order ends can last up to 5 years, but can last indefinitely if there is a subsequent conviction of a crime or stalking. A protective order cannot be entered without a hearing if a divorce is not already pending. A contractual separation agreement is a written contract signed by both parties. A separation agreement is a way for couples to settle issues that arise in a divorce before the divorce is final. It allows each party to go their separate ways for a period of time, usually 2 or 3 years. At the same time, a separation agreement will address how debts will be handled, who is responsible for which expenses, and whether one party will be entitled to spousal support. Once the separation period has expired, the couple obtains a divorce according to the terms of the separation agreement. A judge may be willing to incorporate most of the terms of the separation agreement into a divorce decree. On its face, a separation agreement appears to be the perfect solution for a couple who has no desire to divorce immediately. However, there are some disadvantages to separation agreements. One such disadvantage is that a judge may not be willing to enforce a separation agreement if he/she believes that a party did not fully and honestly disclose all of their assets and debts. So let us say that during your separation, you discover that your spouse actually has retirement, and you were not aware of this retirement plan prior to your settlement on the separation agreement. A judge may not enforce your separation agreement if he/she believes you misled your spouse about the existence of this retirement plan. So let us say that the separation agreement provides that your spouse will pay the mortgage on your home. However, your spouse loses his job and is unable to make the mortgage payments and the bank forecloses on your home. A judge may not be willing to enforce your separation agreement against your spouse if he/she believes that the foreclosure was not within your spouse’s control. If you are considering separation as an alternative to divorce, speak to a qualified, knowledgeable family law attorney so you understand what the consequences of separation agreements are in Texas.
Advantages of a Separation Agreements
Agreeing to a separation is not as complicated or difficult as many people think. A good separation agreement gives the parties control over their future since divorce courts have the authority to make all property and child support decisions regardless of the wishes of the parties. A separation agreement may provide the following benefits for one or both of the parties:
Financial Arrangements
A separation agreement can give a person time to settle his or her financial affairs before agreeing to a divorce and making permanent decisions on alimony, child support, or other family finances. It can clear up disputes over liability for debts. It allows a person the opportunity to protect his or her assets.
Child Custody
If a couple has children, a separation agreement can give them time to settle custody and visitation issues before a final decision is ever made in a formal hearing. If both parents agree to a division of legal rights, one can formalize the same into a court order. This avoids lengthy litigation over custody and control of the children.
Property Issues
As with finances, it is a way to allow a person time to protect his or her assets. A separation agreement can avoid the costly process of having to go to court in order to prove whether or not certain items are marital property, separate property, or whether they should be split or divided in any particular way.
Debt Issues
Many people do not have the money to pay off past debts that are dividing a couple during a divorce proceeding. They are worried about how they will meet their expenses for the next several months while going through the divorce process. A separation agreement allows the parties to agree on who will be responsible for which debt and how to pay it.
What to Do If You’re Considering a Separation
In Texas, separation is a little different than in other states. Many states require a decree to legally separate. But in Texas, you don’t have to get the courts involved to separate. This is because separation isn’t a legal concept that’s even covered in Texas statute. In Texas, living "separate and apart" means that you’re living separately from your spouse and you don’t intend to get back together with them. However, without filling out a decree of separation and filing it with the clerk of courts, you forfeit the right to certain benefits for your spouse, including:
While there is no formal, legal separation process in Texas, the following are the general steps that a couple should take when considering separation: In Texas, legal separation is often termed a separation agreement . Separation agreements are not recognized by Texas law as a "legal" method of separation, so they are not supported by the Texas Family Code. Nonetheless, having a separation agreement between spouses will allow both partners to understand what to expect in the immediate future. A separation agreement is purely a written contract between spouses, and it requires the signatures of both husband and wife. Since Texas is a "community property state," income derived during the marriage belongs to both spouses. The same is true of debt; however, a separation agreement will state if one spouse is willing to forgive his or her interest in an asset or entity so that only the other spouse has ownership of the item or liability. These agreements are enforceable in civil court for each provision that mandates a divorce.
How Does a Separation Affect Finances and Property
One of the most significant areas where a legal separation or divorce can affect your finances is with regard to child support and spousal maintenance payments. Under Texas Family Code, both parents have an obligation to support their child, and if this obligation is not met voluntarily, collection activity can begin through the establishment of child support judgments.
Because a legal separation is not recognized in Texas, there is no legal standard to evaluate establish when one spouse is no longer required to support the other. Therefore, if you are separating from your spouse, you need to ensure that you and your children have the support that you need to live independently. Working out a formal arrangement with your spouse that addresses these issues may be the best way to create the separation that you desire before your divorce is finalized.
The division of debt and assets is an important part of the divorce process. Because a formal separation does not exist in Texas, any debts that are incurred during the separation remain the responsibility of both parties until the divorce is finalized. The process of dividing debts and assets is typically done through negotiation or mediation. If you do have a signed agreement addressing how this division will occur during your legal separation period, your attorney can work with the court to ensure that your rights are enforced and that you receive the support you need.
Custody and Child Support Issues
In the majority of cases, parents will assume legal custody over minor children after separating. However, the parties may have different views with regard to physical custody. For instance, one party may want to keep the children at home while their ex-partner moves out, or they may agree to 50/50 living arrangements. Such considerations often depend on what is in the best interests of the child — so the first parent to file may want to file a custody suit before moving out of the house, but that’s not always necessary.
You may be wondering: What if I need it resolved now? That’s where temporary orders come in. When the legal divorce proceedings are filed, parties can also ask for temporary orders to be put in place, covering areas like conservatorship, possession and access, child support, discovery and attorneys’ fees .
However, temporary orders should be well thought out. The intent is to pass the time until the case is heard by a final divorce decree. Since these are temporary measures, you don’t want to set the tone for your child custody arrangement (and potentially lead to further litigation) by establishing an arrangement that isn’t in the child’s best interests. On the other hand, though, you don’t want to put your children in a position where they are used as a bargaining chip.
The aim is to establish a workable plan that permits parents to care for their children both while the divorce is pending and following the final order. If viable options can be presented to the court, you may be able to avoid litigation altogether.