Texas Legal Separation Defined
Texas has no law for "legal separation." You are either in a marriage or you are no longer married. In other states, there may be procedures to get legally separated but in Texas the law does not provide for such. You can either file for divorce or live together separately and apart without filing any paperwork.
You do not need a legal separation to protect your right to community property or to spousal support. If there is any community property that has been acquired during the marriage, it is not going to automatically be divided up just because you are living separately. Also , if you have children, a legal separation is not going to provide you with any order for possession and access. The Court would still need to determine custody, child support, and visitation.
If you prefer going through a legal separation rather than a divorce, the most effective way to organize your affairs such as custody, possession and access and the division of property would be to enter into a marital partition agreement. As a general rule, if there are children involved, you will likely file for divorce.
Alternatives to Legal Separation in Texas
While Texas does not have a legal separation process, there are alternatives that may help you meet your needs. Informal agreements are a possible, but imperfect solution to provide some structure for your life as they are not legally enforceable. A similar alternative is court-approved temporary orders which are temporary in nature and can govern just about every aspect of your life during the pendency of your case. Examples of these alternatives include:
Do Nothing (Informal Agreement) You may decide that for whatever reason that you no longer want to be with your spouse and wish to informally separate without addressing the legalities of divorce, financial obligations, property division, parenting, child support, custody, spousal maintenance, etc. Essentially, you would be separated without any legal or financial obligations to each other. You and your spouse would maintain separate property assets. In practice, this tends to be a rare arrangement with few good outcomes. The biggest impact is the fact that when you file for divorce, there will be no legal separation since there is still no court order dividing the property. This can (and usually does) cost a non-filing spouse half of the marital estate in Texas. Additionally, most agreements like these eventually lead to conflict regarding a number of issues, including finances, parenting time, and/or a final divorce. Be wary of informal agreements.
Temporary Orders Typically, one or both of the parties will file a motion for temporary orders at the very beginning of a divorce case. Once a hearing is held, the judge makes an order as to how the finances will be handled, how the children will be supported and cared for, and how the parties will conduct themselves in relation to spousal maintenance or other relevant matters. Temporary orders are granted with the understanding that as the case progresses, they may be modified by either party if any issue arises. Temporary orders can provide some much needed stability as soon as possible.
Steps for Drafting a Separation Agreement
The process for creating a separation agreement follows many of the same steps present during divorce proceedings. First, meet with an attorney and discuss your needs and expectations. This is followed by the initial drafting of the separation agreement where some back-and-forth takes place before everything is finalized. The first step of this process includes the creation of a property list. Share everything you and your spouse jointly own or possess as individuals so you can create an accurate picture of the debts and assets present at the time of separation. In Texas, all property, debts and assets accumulated during the marriage are considered community property, and community property is divided equally between spouses after the marriage ends. Under statutory law, the division calls for a just and right division of property after considering: The next step involves the drafting of the separation agreement. The agreement should include: The agreement can allow both parties to maintain joint and individual bank accounts while specifying which funds belong to whom. You should include stipulations for the care and custody of pets as well. If applicable, the agreement should also lay out how spousal support/maintenance payments work and health insurance issues that may arise. The separation is final when the signatures are complete. At this stage, the separation becomes legally binding. However, keep in mind that if one party breaks the terms of this agreement, such as by not giving sufficient financial support or failing to pay bills, the other party may seek legal damages and use the agreement as evidence of noncompliance. Some individuals choose to obtain legal separation and go directly into a divorce process rather than formalizing separation. However, others feel more comfortable with a separation first.
When Is It Necessary to Obtain a Separation Order?
A legal separation in Texas does not have a specific impact on your property rights. Your assets will continue to be classified as your separate or community property, as if you were still married. That said, your actions during the time of separation can impact your eventual divorce. Commingling of assets, new purchases using joint bank accounts, devoting joint assets during the marriage to other purposes, and otherwise treating joint assets as separate can serve as evidence of betrayal of trust, which can in turn affect your divorce settlement.
Tax consequences of separation can be very real. Since you are not technically able to file your taxes as single, the IRS considers 2015 to be a single year and any assets earned or gained during that time as jointly earned. You cannot start claiming Head of Household until you actually separate. To at least be eligible for Head of Household status, you must have moved out of the same residence to ensure that you are living apart from your spouse and to ensure that you meet the requirements to be the primary care provider for a child. Situation can get complicated if you have a grown child who moves back in with a parent or an adult child who continues to be provided for by one of the parents. Further complications arise when the custodial parents have structured their finances based on the assumption of Head of Household status with a dependent child/ren.
Your separation period is not the time to establish your control of any physical assets or the time to start withholding or alienating property. Doing so may embolden your spouse to do the same. Disputes over ownership of vehicles , bank accounts, and other physical assets often occur during the divorce process and continue on into the post divorce period when spousal support, child support, and custody arrangements are still a matter of negotiation and some degree of uncertainty.
Just like the IRS, creditors will want their share of payment. If you and your spouse accumulate debt as part of your daily living expenses and provide property as collateral (e.g. mortgage and home, equipment leases, etc.) creditors will hold you both responsible for the debt, whether it’s actually your or your spouse’s. At the same time, doing so may be beneficial. For instances, starting with newly established credit cards and loans that are not tied to each other can be a means to start establishing good credit ratings in your own name. If you could not qualify for financing for a new hot water heater because your spouse’s credit rating is bad (though your own credit history is excellent), establishing new accounts in your own name can also be good for your ability to secure financing for goods and services that you may need.
Besides your marital status, the law does not recognize separation. In the eyes of the law you are still married and thus bound by the legal and fiduciary obligations of that designation.
Seeking Legal Advice and Representation After Separation
Even couples that decide to separate and plan or file for divorce may come up against a number of complex issues that can make obtaining legal representation beneficial. A Texas separation agreement is a legally binding contract between both parties that is enforceable. Regardless, there are a number of potentially harmful situations where seeking legal advice and representation is recommended.
Separations that involve children and even adult children can potentially lead to a number of complex situations. Family law issues involving children often require the courts to interject themselves into the situation. A good example of this is where one of the spouses may still have partial custody of the children, but they choose to move away from the spouse with whom they share custody. There are a number of variations of the situation that can end in costly legal battles, as topics such as support payments, visitation, and the division of parental responsibilities become complex and potentially exploited.
Property issues also tend to be complicated with legal separations. A couple that is separating may only have a small amount of property to divide, while another couple may have significant assets to split. Each type can create its own set of issues, with an important factor being whether or not the couple had signed any prenuptial agreements and whether they did any estate planning. There is also the possibility of one spouse being financially burdened by the other, so the concept of a common-law marriage should also be discussed when applicable.
Other issues include issues surrounding spousal maintenance and even domestic violence. Finding the right lawyers willing to address complex issues in a manner suitable for the circumstances, without creating further issues that would turn the legal separation toxic.
FAQs on Separation in Texas
Does Texas have a law for legal separation?
No. A legal separation is not a lawful status in Texas. The state only recognizes divorce as a valid status of a couple who was previously married. However, you can file for legal separation by filing a case for divorce. Alternatively, you can enter into a written agreement with your spouse that effectively separates the residence of one party from the other. This is often referred to as "burning the house down". In a burn down agreement each party takes their personal property and will never go back to that residence. A burn down agreement will list all property and that property will be awarded in a divorce to the party that it belongs to.
How long can a couple be legally separated?
As noted above, Texas does not have a legal separation law. When the court sends the judge its order of divorce, the divorce is final. The judge can impose the terms of a burn down agreement , but the dates of performance will be clearly delineated in that agreement so the courts will not have any further involvement except for a divorce without other issues.
Is a legal separation legally binding?
Although the courts will enforce a burn down agreement, there is no legal separation law in Texas. A burn down agreement is not a legally binding order, but if there is a mutual agreement reached, it should be carried out as agreed upon with the parties deciding for themselves who gets what.
Will a legal separation stop a divorce?
A couple can enter into a burn down agreement and live in separate residences pending a divorce. The terms of the separation would be binding on the parties, but the documents themselves do not require a final order from the court. At the point when the parties reach a consensus on all issues in their divorce, they are free to file just one case, their divorce, and reduce their burn down agreement to an enforceable order.