All About Legal Separation in Texas: Your Guide to the Process

Divorce vs Legal Separation In Texas

One common question clients have is whether and when they should pursue legal separation rather than divorce. The first thing to know is that Texas does not technically have legal separation. In other states, such as Wisconsin, legal separation is an option and there is an entire body of law around it. In addition to legal separation, Wisconsin also has annulment. However, Texas doesn’t have either legal separation or annulment. While legal separation doesn’t exist, Texas does allow for suit for temporary orders. A suit for temporary orders allows the court to enter temporary orders that go into effect until the entry of the final orders in the case. Suit for temporary orders is only available when a divorce action is pending; there is no suit for temporary orders for nonsuit, suit for separation, or common law divorce. If no divorce action is pending (if you are not already divorced or have not filed for divorce), you cannot file suit for temporary orders, though there are circumstances under which the court can enter a temporary restraining order to protect community assets or a temporary injunction to preserve the child’s present residence . For example, if the wife has filed for divorce but husband still lives in the house and refuses to move out, the court can enter an order prohibiting husband from coming back into the house, without the other party having to file a suit for temporary orders.
Suit for temporary orders gives the court authority to enter temporary orders that address primary children issues, managing expenses, a spouse’s right to access property, and temporary spousal support. The same grounds for filing a divorce suit also apply to filing for temporary orders while the divorce action is pending. If the spouse agrees with the provisions of the temporary orders, then the spouse can sign an agreement and submit an Agreed Temporary Order. If necessary, a hearing can be held at which evidence is presented to support the party’s requested temporary orders.

Options Other Than Legal Separation

The process of separating from a spouse can be addressed as simply the act of living in two different residences as it can be through an official proceeding. Soon after the petition for divorce is filed, but before the divorce is finalized, either spouse can move out of the home in which they lived together during the marriage. This separation is called an informal separation. Each spouse now owns their own personal property and is responsible for their debt.
In Texas, spouses can also execute a partition and exchange agreement in the event they do not want to legally separate but wish to protect their individual property and liabilities. These agreements are enforceable under Texas law.
Another option for couples who wish to avoid the need for temporary orders is the possible entry of a mutual temporary orders agreement. This is when a couple agrees on what they will do pending the issuance of an order granting temporary relief. The court’s rules require that this agreement be in writing and signed by the judge.
In the event that there is no agreement on temporary relief and a hearing is needed, the spouse requesting the relief must file a motion seeking the entry of temporary orders. The spouse, or their lawyer, must then give notice to the other side setting the matter down for hearing in a specific court. If an agreement cannot be reached between the parties, after a hearing in front of a judge, temporary orders are entered. Temporary orders terminate upon the divorce being finalized (although enforcement of the temporary orders might continue).
No matter what method is chosen, if property has been earned or debt acquired during the marriage, the courts have the ability to divide these items between the parties in a fair and just manner.

Financial Ramifications Of Separation

Just as there are numerous debates and issues to consider when filing for divorce, there are also plenty of points to think over when, as a married couple, you live apart from one another. The legal term for this is "legal separation." Most of the financial implications of separation can be found within the Texas Family Code, although there are other ways the family courts in Texas govern separating couples as well.
Starting off, the couple needs to separate their property. Meaning, what did you own before the marriage, what have you built up during the marriage, and what have you acquired since your separation from one another. Whatever property you had before the marriage – a house for instance – does not necessarily mean you are entitled to it just because you’re legally separated and maybe even getting a divorce. Along with property, each spouse needs to divide any community debt that is a result of the marriage, such as mortgages and auto loans.
Similar to the way assets are divided up, there is no guarantee both spouses will receive the same amount of spousal support once they do separate. How much you receive depends on the facts of the case, including the length of the marriage, a spouse’s age and health, and the ability of one spouse to earn an income compared to the other spouse’s ability. You can get "temporary spousal support," which is set by the judge during the temporary orders portion of your case, but it does not last throughout the entire separation process.
If children are involved, the issue of custody – namely, who gets temporary or primary custody of the children during the separation – must be addressed as well. Just because you may have separated from one another does not mean you plan on divorcing, though. You can simply desire time apart and ultimately want to reunite afterward. This is called a "trial separation," where the relationship is placed on hold with the idea that both people will try to work out their issues and figure out whether remaining married is in their best interest and the best interest of their children.
If you do plan on divorcing, however, separating trends to happen before going to mediation and/or court. If you do end up going this route, there are all the various issues that come with divorce, including property and debt division, determining what to do with the house, custody matters, and the award or denial of spousal support.
There are exactly what is suggested in the legal term: legal separation. What does this mean? Essentially, it means that you will have a court order that reunites you and your spouse, that everyone is ultimately separated (therefore, free to date and engage in relationships with other people), and that it essentially creates a "trial separation" without ending the marriage.

Custody and Child Support Issues When Separating

When a couple legally separates in Texas, arrangements for the care of their minor children and their financial support are essential to ensuring smooth day-to-day function while preparing for divorce. When no mutual decision can be made as to who will have physical custody of minor children, a temporary custody order will be entered by the court. This temporary custody order will last until otherwise changed by a final order or another temporary order. Much like the final custody decision is made, the temporary custody order will be determined based on the best interest of the child standard, taking into consideration factors such as: Upon separation, there are several options as far as determining the amount of financial support the obliged parent will be responsible for. First, parents can agree on the amount of child support voluntarily, and present it to the court and the Justices may adopt it. However, if they are unable to agree, the court will look at the percentage guidelines provided by Texas Family Code §154.123 to determine child support awards. Your attorney will assist you in determining the appropriate amount of child support you will receive based on those guidelines, and will ensure that the amount agreed upon is presented to the judge in the most concise and accurate manner possible. It should be noted that child support can be modified after a divorce is finalized, so there is no reason to withhold from receiving the child support you are entitled to under these guidelines.

Necessary Separation Paperwork

The legal documentation and agreements between you and your spouse will depend on how you choose to separate. If you choose to separate informally outside of the court system, the only legal document between you will be the temporary orders that are filed in court for your divorce. However, if you choose to separate through the court system by filing for a protective order, a divorce, or an informal "suit affecting the parent-child relationship," there are a number of other legal documents that may be necessary to resolve your issues.
For those who desire to separate without any court involvement, it can be beneficial to draft a temporary agreement between you and your spouse to discuss how the parenting plan will work while you and your spouse are separated and how the separation will affect child and spousal support. This is especially important if you have children and one of you is going to be moving out of the house. If you have children and you and your spouse separate either through the court system or informally, you will most likely need to have a temporary Orders in Suit Affecting the Parent-Child Relationship filed with the court . This document sets up a temporary parenting plan you and your spouse must follow while your separation or divorce proceeds through the court system. When separating through the court system, you will probably need a temporary injunction or a protective order to keep your spouse from harassing you or stalking you. Depending on the level of violence that exists, filing for a temporary restraining order might be appropriate for you. In order to file for a divorce or suit affecting the parent-child relationship, it is not necessary you wait until your spouse has vacated the marital residence. However, if either party still lives in the home and with children, the parties should file for a protective order or temporary injunction to prevent the other from engaging in behavior that may endanger the children. Filing for a divorce requires you to make numerous disclosures to the court. A couple of the more common forms used are SWORN inventory and Appraisement and Request for Disclosure. The disclosure requirements in a divorce are mandatory under the Texas Family Code, and failure to disclose required information can be the basis for a valid motion to compel disclosure and for sanctions against the non-complying party, including striking pleadings or dismissing the case.

Pros and Cons Of Separating In Texas

The decision to separate from your spouse can stem from a variety of factors, ranging from deep-rooted issues to more immediate financial or logistical concerns. There are both pros and cons to separating instead of seeking a divorce before making a decision.
Some of the biggest pros and cons to weigh when determining whether a legal separation is a better option for you than divorce in Texas include:
Pros
Emotional: For couples who still retain hope for their marriage, separation maintains the potential for reconnection. Some people find they need time apart to realize how important their marriage is to them.
Legal: A separation is often viewed as a precursor to divorce, especially in Texas, where the legal separation process is essentially the same as divorce with the exception that marital assets are divided once a divorce is finalized.
Financial: For some couples, accumulating additional debt during divorce proceedings is a concern, as these proceedings sometimes last several months to years. A legal separation allows couples to begin functioning separately without spending money on lawyers, property appraisal experts, and other process details.
Cons
Emotional: While some couples share a hopeful view of separation, others feel a sense of hopeless despair as they move further apart from their spouse.
Legal: Divorce proceedings grant couples the finality they may need to move on. A legal separation is not a binding divorce settlement, so couples may find themselves in mediation or contested court proceedings for years without arriving at an official divorce decree.
Financial: Although a legal separation offers temporary financial reprieve, it takes considerable time and money to go through the separation process just as it would to obtain a divorce. For those who have decided to divorce, waiting to move forward could mean a difficult adjustment later.

Getting Legal Help For A Separation

When contemplating separation from your spouse, it is important to seek legal counsel who can guide you through the process. Your attorney will help you understand your rights and responsibilities when separated from your spouse. Your Texas lawyer can review any existing agreements between you and your spouse and ensure those agreements are properly recorded with either your divorce or with a Suit to Establish the Parent-Child Relationship after the divorce becomes final.
Your attorney may also help you avoid any pitfalls that can arise when spouses are not officially separated with appropriate agreements in place. Many people who separate from their spouses without the assistance of an attorney end up facing legal problems with Texas agencies regarding income withholding for child support, medical support, health insurance , and other obligations that were taken care of before separation.
You may also need assistance from a Texas lawyer to ensure your spouse is abiding by any agreements you have made, especially when children are involved. Often, unmarried parents or separated and divorced parents do not have the proper court orders in place in order to secure child support, visitation, and other details. Should any disputes arise after separation, you will want legal representation that can protect your rights as a mother or father.
If you are interested in pursuing separation from your spouse, you need to consult with an experienced and qualified attorney who can provide advice and guidance throughout the process. You and your Texas lawyer can prepare for divorce, or help to solidify your decision to remain separated for the foreseeable future.