Legal Separation in Texas

There's married, and there's divorce, but did you also know there's a middle ground? Legal separation is an ill-defined gray area that spans the gap between the two marriage extremes. A place where you're not quite married, but you aren't really divorced, either. As with all things wedding bells, legal separation is handled differently from state to state, and unfortunately, Texas does not currently recognize it as a viable option for struggling marriages. However, that doesn't mean legal separation is completely immaterial in the Lone Star state, as there are still some workarounds for couples who want to achieve a similar result.

What is Legal Separation?

While both divorce and legal separation achieve essentially the same end, separation is less permanent than divorce. Under a legal separation, spouses live apart and often must comply with the same kinds of divorce-related court orders (such as custody arrangements). However, under this guise, a couple would still legally remain married, allowing them access to things such as inheritance, social security benefits, and retirement plans, while also restricting them from marrying another person until a divorce is finalized.

There isn't a clearly defined benefit to choosing one over the other, so really, the choice to legally separate (rather than divorce) comes down to personal preference. In some situations, couples know they need time apart to breathe, but aren't ready to commit to the finality of a divorce. Other times, separation might be used as a stepping stone. Since Texas courts don't allow legal separation, couples who want this option have to get a little creative.

Informal Separation

The easiest and most obvious answer to the legal separation dilemma is to just separate. Even though Texas courts do not officially recognize legal separation, they can't—and won't—actually stop you and your partner from taking a physical time out. In this regard, couples are always free to separate and don't need the court's permission to initiate an informal separation.

Obviously, this solution has its drawbacks, namely that all assets will still be community property and the fact that there's no court order dictating visitation or custody when children are involved.

Temporary Order or Separation Agreement

One of these creative, legal separation mimics is to file a Temporary Order or a Separation Agreement. On the one hand, "legal separation" is the formal process of going to court to execute a marital separation. A temporary order, or "separation agreement," on the other, is merely a document that dictates how assets and responsibilities will be split if there is a divorce or while a divorce is ongoing.

Separation agreements can either be constructed and signed voluntarily by the spouses or can be imposed by a judge at an evidentiary hearing. So, on its face, a separation agreement handles a lot of the same responsibilities as a legal separation would in other states. However, it differs in the sense that it only lasts until a divorce decree is formalized.

Partition and Exchange Agreement

For couples who want to informally separate for an undetermined amount of time without the death peal of divorce looming in the immediate future, there's the Partition and Exchange Agreement. This option is basically a type of post-nuptial contract that can be executed to override the standard rules of community property. It can: 1) turn already existing community property into the separate property of one of the spouses; and 2) make future earnings separate—rather than community—property. All while staying married.

A word to the wise: couples who enter into a Partition and Exchange Agreement should take care to have that contract dismantled should they ever reconcile, otherwise one or the other could end up with a rather unwelcome reminder if one of them were to pass away unexpectedly.

Suit Affecting the Parent-Child Relationship (SAPCR)

Aside from property, the other important element of a marriage that legal separation usually handles is visitation, custody, and care of children. The best way for Texas couples to ensure their child's needs are being properly enforced during separation is to initiate a Suit Affecting the Parent-Child Relationship, or SAPCR. A SAPCR can address custody, visitation, residence, child support, and even things like medical and education decisions.

Texas Divorce Attorneys

In the end, trying to navigate all these workable roundabouts to legal separation in Texas can be tricky, and in no instance should you ever sign any of these types of contracts without first consulting an attorney. If you or a loved one have questions about alternatives to legal separation in Texas or other divorce-related topics, we may be able to help. Call us today at (972) 436-8000, or schedule a consultation online to discuss your specific situation, and together, we can find a solution that's best for you.