Is Legal Separation Possible in Texas?
There is no such thing as a legal separation in Texas as there is in some other states – like Pennsylvania, for example. A legal separation is when a couple parts ways and establishes a legal agreement on how property and child custody will be handled prior to actually obtaining a divorce.
In Pennsylvania, a couple can formalize their separation by filing with the local Prothonotary . In Texas, there is no "legal separation."
That’s not to say that a couple cannot live apart and make a legal agreement on how both will handle physical property and custody of children. They just don’t do it under the heading of "legal separation." Instead, they write up their own agreement, sign it, and then – well – separate.
What to Expect From the Divorce Process in Texas
The divorce process in Texas generally begins with one spouse filing an Original Petition for Divorce in the district, county or surrogate court that has jurisdiction to hear the case. If one or both parties have been residents of the state for at least the six months prior to filing, the court has jurisdiction. Residency must be established by evidence of where the parties have lived.
The petition must be served on the other spouse (by personal service or waiver), and he or she then has a certain amount of time to file an answer. Afterwards, the parties may engage in discovery, file temporary orders, attend mediation, or pursue litigation in court about the issues necessary to finalize the divorce.
An attempt to resolve the divorce without court involvement is usually required under the Texas Family Code. Texas courts do this by requiring mediation to resolve all or some of the issues in the case. Mediation is a means of alternative dispute resolution (ADR). Some counties, like Harris County, make it mandatory to mediate before a judge will set it for a contested trial. If a judge has to divide the property and deal with the custody issues, the litigation of a contested divorce will almost always take several months, if not longer.
The most important aspects of the case will involve addressing the property owned by the parties in addition to the custody of any children. The property to be divided includes all assets and debts. The division of the property must be equitable and not necessarily equal. This means the court does not have to divide the property 50/50, but the division must be just and right under the circumstances. However, if there was a 50/50 agreement reached between the parties pre- or post-marital agreement, it is more difficult for the court to make a different division.
If trouble in the marriage is due to domestic abuse, it is possible to obtain an immediate temporary injunction/enjoiner or protective order to prevent the other spouse from going near you, your family or your home.
Once the issues are agreed upon or determined, a Final Decree of Divorce is entered by the court. Now the parties’ marriage is legally terminated and the property is divided.
Separation versus Divorce: What’s the Difference?
When comparing divorce to separation (as understood in other states), you will find that the two concepts bear many similarities. However, in Texas, legal separation does not have the same meaning as in other states. In general, the Equal Division of Property Act in Texas mandates that marital property is divided equally between spouses in divorce settlements. On the other hand, such equitable division is not applied in legal separation cases in Texas.
Essentially, in a divorce case, the value of all acquired property is calculated from the date of marriage to separation and a 50/50 policy is enforced on the marital estate. Financial and other resources gained individually after separation do not count towards the total. However, a legal separation in Texas only entails separating the assets and resources between the spouses without dissolving the marriage. Therefore, the Texas courts will not divide the property in the same way in legal separation cases.
As with dissolution, legal separation has no effect on custody of the children or the covering of financial obligations.
Other Options Besides Legal Separation in Texas
Surveys indicate that many people examine the issue of legal separation before proceeding with divorce. However, Texas does not provide a legal mechanism for a formal separation of spouses. Although less preferable than legal separation, there are several alternative options available in Texas that can provide similar benefits to a legal separation.
Temporary Orders
Parties who are contemplating or have already filed for divorce may be able to obtain Temporary Orders as part of their divorce proceedings. Temporary Orders can provide direction with respect to certain significant matters such as temporary child custody, child support, possession and access to a child, division of property, and injunctive relief to address threats of harm.
Postnuptial Agreements
Texas law also allows parties to enter into mutual agreements governing their relative rights and obligations and marital finances. For these types of postnupital agreements to be enforceable, it is essential that the agreement is substantively and procedurally fair (i.e., no fraud was committed, and full disclosure concerning property and debt was given by both spouses).
Informal Separation
Some people choose to separate informally by living apart for an extensive period of time. These types of separations occur without the involvement of a court order or other legal document. The courts will generally not be involved with disputes that may arise during the informal separation period, but spouses can determine appropriate rules for how they will act toward each other and how property will be used and debts incurred.
Although nothing can truly replace a formal legal separation, the above options hopefully will point you in the right direction as you decide with your spouse whether pursuing a legal separation or an alternative to such a separation is realistic for you and your family.
Separation versus Divorce: What Happens to the Property and the Money?
When a divorcing couple owns property and expects to divide it in the event of divorce, Texas law provides specific guidelines for the division. If they can agree on an appropriate settlement, they may use a "manner of partitioning" agreement to equitably divide the assets in question. If they cannot, the Court will follow the general terms of the law. Texas is a "community property" state which means that any marital property is presumed to belong equally to both parties. Because most family property exists as "community property," courts typically divide property on a 50-50 basis with some allowances made for the other spouse’s separate property.
If spouses choose to separate and designate property ownership during that period of formal separation , the asset division must be equitable as well. If an agreement is made, a couple using an informal divorce must go over all community property in order to clarify who owns what and in what percentage. To protect yourself from loss and ensure all property is properly divided, it’s best to consult an attorney to draft the separation agreement. Although Texas is not a "common law property" state, some property can be treated as joint property by the operation of the law unless otherwise agreed. Funds from interest earned on joint bank accounts or joint investment accounts, for example, would be considered joint property although each spouse makes deposits.
Custody and support — What’s the difference?
For people who have ended their marriage or are on the way to ending their marriage, perhaps the most confusing aspect of both separation and divorce is how child custody and child support are handled. Child custody and child support are court orders that are issued during a divorce proceeding. So this means that once a husband files for divorce in Texas court, there will be a hearing regarding child custody and whether or not child support will be ordered. If so, the court will issue an order determining who has child custody, how often each parent will see the child or children, and how much child support must be paid.
But if a husband and wife have only been legally separated, child custody and child support are not so clear. As far as the law is concerned in Texas, if the husband and wife are only legally separated, child custody and child support still must be decided. But the process is different for separation as compared with divorce. If the parties are only legally separated, they are not legally divorced. Therefore, they technically still have the same rights as any other married couple. So there does not necessarily need to be a court hearing on child support and child custody. The parties can simply agree on how to separate, resolve issues regarding who will have custody of the children and resolve issues regarding child support. And because they are still married, there is no need to file anything with the Texas court. So this means that if the parties reach an agreement about child custody and child support, then they can simply file their signed agreement with the court for a judge to review. Then the judge will sign the separation agreement and child support order. This is different than in divorce proceedings, in which there must be a hearing before a child support order is issued and adopted by the judge. And if there is no agreement between the husband and wife regarding child support and child custody and they are only legally separated, then there is no mechanism in Texas for determining those matters. The parties must now divorce for the matters of child support and child custody to be heard in court. However, if you have a Texas Attorney representing you while getting legally separated, they may be able to work with the opposing party or attorney to settle, so that you can avoid the costly process of also getting a divorce.
Dissolution Vs informal separation – what’s Your best bet?
Once a couple has decided that they are no longer compatible with each other, they can experience a common dilemma: Is it better to pursue a divorce or simply live apart? While a couple may think that they may want a divorce, it is possible that a simple informal separation may best fit their specific situation. However, it is important to keep in mind that a divorce, once it’s final, is permanent while an informal separation can be temporary.
Personal Factors to Consider
One of the primary reasons a couple decides to separate rather than divorce is they are not ready to sever all legal ties. To them, informally separating is the next best solution to separating completely. There could be reasons that are beyond a couple’s control. For instance, staying married can make it easier for one partner to continue using the other’s health insurance. This can be important if the couple has had children and those children are still minors. A divorce would mean losing that medical insurance, potentially depriving the children of health care coverage.
There are also cases where a divorce may affect a partner’s immigration status. This is most common in marriages involving a foreign national without U.S. citizenship. In cases involving a foreign national, pursuing a divorce may mean the foreign spouse deported from the United States. The same applies if one spouse has put their partner through college with a formal contract to pay back the tuition fees if the divorce happens before the completion of the course of study.
Finding Solutions for Legal and Financial Issues
A couple may also have legal and financial reasons for seeking an informal separation rather than a divorce. While it is not as common, some marriages involve contracts that legally bind the spouses in financial ways during the course of the marriage. Such a marital agreement is a prenuptial contract or post-nuptial contract. A prenuptial contract is signed before a wedding. A post-nuptial is signed after the wedding. The agreements address the splitting of assets, property rights, child custody, alimony, etc. Couples who have such contracts can find themselves wanting to separate rather than divorce for reasons that have nothing to do with the contract. For instance, they may feel that their personal, legal, or financial reasons are only temporary. Pursuing a divorce would invalidate such agreements, often to the detriment of one party.
There are many factors to weigh when considering whether to pursue an informal separation rather than a divorce. A couple’s specific circumstances will determine if the alternative to divorce is the right solution for their situation.
Texas legal resources and how to find help
Professional legal advice is essential to determine the implications of separation or divorce. In most cases, it’s best to contact an attorney to obtain legal advice before taking steps to end a marriage. Texas law contains many requirements that affect both the timing and substance of separation and divorce proceedings. Failure to comply can result in significant — and costly — mistakes. The legal process is difficult enough; don’t complicate it by neglecting to consult with an experienced family law attorney.
In addition to attorney expertise, the following resources guide individuals through the process of separation and divorce in Texas: Legal Aid. Texas Legal Services Center in Austin and Legal Aid of Northwest Texas in Fort Worth is the site for legal resources, including a statewide online self-help center for low-income Texans. The site offers online, interactive legal advice on a variety of issues in English and Spanish, including divorce and other family law. Council on Sex Offender Treatment. The council offers the information about civilly committed persons. Ethical Wills. The Texas A&M Law Library provides information and resources for the creation of ethical wills, which communicate your thoughts, wishes, and values to loved ones, either during life or after death. Texas Divorce Information. The Texas Bar Association’s Family Law Practice section covers family law issues, including divorce, child support, custody, division of property, paternity , termination of parental rights/ adoption, and domestic violence. Resources include a glossary, forum for questions and answers, and FAQs regarding lawyers, child custody, paternity testing, visitation, and child support. National Domestic Violence Hotline. The hotline provides emergency shelter, relocation assistance, job assistance, and counseling for domestic violence survivors. Call 1-800-799-SAFE or access the website. University of Texas at Arlington Divorce Information Page. The page covers legal aid options, pro bono and sliding scale legal services, universities’ free divorce decrees, as well as other divorce options. Texas Divorce and Separation. Covers how to get a divorce in Texas, financial issues and divorce, property issues, and how to get temporary orders before a divorce. Texas Family Court Guide to Child Support. The guide is aimed at helping custodial parents with their legal rights and responsibilities regarding child support. Texas Child Support. The State of Texas Child Support division provides information about making and receiving support payments, establishing paternity, enforcement of child support, the Texas Child Support Enforcement table, and obtaining medical support for a child. Getting Married in Texas. The Texas Secretary of State offers information and forms for obtaining marriage licenses in Texas. Texas A&M Extension: Family Law Education Project. The project provides family law information to support professional and lay audiences.