In many states, legal separation is an intermediate step that couples will take when they are considering or awaiting a divorce. The couple would still be legally married, but they would live separate lives pursuant to a court-ordered agreement. They may have reasons for wanting to stay married, such as qualifying for certain benefits or having a temporary arrangement while they decide on their future. For Texas couples, however, legal separation is not an option. Despite this, there are ways Texas couples can achieve the same effect as a legal separation in Texas.
In many respects, legal separation is the same as a divorce. The judge would decide the exact same issues as they would in a divorce, including property division and custody issues. The spouses would live apart. The only remaining step would be petitioning the court to change the legal separation into a divorce.
There Is No Legal Separation in Texas
Some couples may have particular reasons why they want a legal separation. Perhaps there are religious or financial reasons, or one spouse wants to remain on the other’s health insurance. Couples may just not want to get a divorce. However, these options are more limited in Texas. In Texas, you are either legally married or divorced – there is no middle ground between the two. This makes any interim period before a divorce is final potentially more difficult, as there are potential repercussions for certain actions.
In Texas, you do not have to be legally separated for any period of time before you can file for a divorce. Many states have a mandatory separation period. In Texas, you can go directly from living together to filing for a divorce, with only a 60-day waiting period until you are able to appear in court to finalize your divorce.
If Texas couples want to take any steps toward ending their marriage, they must proceed through the divorce process outlined in state law. There are no current efforts underway to change state law to allow for legal separation. However, Texas spouses who want to remain married in the interim still have options short of divorce—but they do not quite add up to a true legal separation.
You Can Take Steps Toward Separation While Your Divorce is Pending
In Texas, you can remain separated while your divorce is pending. When separated, you still need to take interim steps to protect yourself while waiting for the divorce to be finalized. The court can and often does enter temporary orders that cover the following:
- Division of property
- Guardianship of the children while the divorce is pending
- Who pays what bills
Without some type of temporary order or agreement, you could end up with an unwanted surprise at the time of the divorce.
You Can Always Have a Separation Agreement (But You Will Still Be Married)
Just because there is no official legal separation available under Texas law does not mean you cannot draft and execute a separation agreement. A separation agreement would be a legally binding contract between you and your spouse. If you choose to negotiate a separation agreement, you should get the help of an experienced family law attorney because you cannot afford to make any mistakes. Overlooking key details would be a mistake that could impact you for years. This separation agreement would be signed outside the court process, but a judge may intervene if one party is not honoring their side of the agreement.
Texas couples can also informally separate while they ponder their future or wait for the divorce. They can live apart without an agreement, either as a trial separation or something that is part of a transition into a more permanent arrangement. There is nothing that says a Texas married couple has to live together.
Other Interim Steps Without a Full Divorce
If there are dangerous circumstances, such as domestic violence or child abuse, you can obtain a protective order. The order would keep the spouse away from you for up to two years. You would still be legally married, but you would be living apart.
In addition, you could also resolve custody matters in the interim with a Suit Affecting the Parent-Child Relationship (SAPCR). The SAPCR could have the court decide matters affecting the children, such as child support and custody during the time period preceding a final divorce. This suit could be decided in court outside of the divorce process.
Remember there are financial consequences if you live apart but choose to remain married. These are still present if you remain married with a protective order. Texas is a community property state, and assets that you acquire could end up as part of the estate that would be divided if and when you do choose to divorce. As such, you should never buy something like a car or a house until you are divorced. The property rules will always apply, no matter what arrangement the spouses may have. You may also be liable for debts that your spouse incurs during this time. In addition, you cannot file tax returns as a single person. You must either file jointly or as Married Filing Separately.
Further, you may be committing adultery under the legal definition of the term if you date other people during this time, even if you are living apart from your spouse. Since you are still legally married until your divorce is finalized, you may be at risk if you are in a relationship before you are divorced. You should be careful what you do in your romantic life until the moment your divorce is finalized.
If you are considering a divorce, or even a separation, and want to know your options, an experienced family law attorney can advise you. An attorney will explain the considerations you need to be aware of and how to handle the situation.