Understanding Legal Separation in Texas: A Thorough Analysis

Legal Separation In Texas Explained

When many people think of "separation" in Texas, they think of divorce. So is legal separation like divorce in Texas?
The answer is no.
Legal separation in Texas describes a court intervention for limited purposes, such as the spousal maintenance or child support those individuals may need, or other basic relief before a full divorce has been filed.
Some couples may need a simpler and less aggressive solution, then pursue divorce later. Exceptions to this general explanation of legal separation in Texas include spouses who do not want to get divorced, but are unable to continue to act as a marital family together.
In that case, the spouses can file for a suit of spouses living apart . Here, the Court will consider dividing property, spousal maintenance and other issues.
Legal separation, in this case, is meant to provide solutions for spouses who cannot live together physically, but do not desire the full finality of a divorce.
Legal separation and marriage annulment are also different. Legal separations are specific to the divorce process and are automatically dissolved if a subsequent divorce is filed. Should the spouses reconcile and resume living together as a family unit, the separation may be revoked by a new court order.
Historically, legal separations have never been extremely popular, but Texans have had the option for about 100 years.

Why Couples Opt For Legal Separation

Divorce isn’t your only option. You could opt for a legal separation instead. Legal separation, or separate maintenance, has similar legal implications to divorce, but no one can be divorced unless they meet certain criteria (such as residency requirements) set forth in Texas law. Legal separation is not a prerequisite to divorce, unlike many other jurisdictions. Some common reasons that couples may choose legal separation over divorce are:
Religious Beliefs. For individuals whose religious beliefs do not condone divorce, legal separation may be a better option. Legal separation is also more acceptable for those concerned about the possibility of their spouse remarrying.
Financial Considerations. Sometimes, financial situations can impact the decision to pursue a legal separation. Church or military employees may lose their job if they pursue a divorce. Receiving spouse benefits from one’s employer may result in the loss of those benefits if you file for divorce. Some health and life insurance plans for spouses may also be impacted by divorce. Finally, divorce can result in taxation of some benefits, resulting in a nice tax liability.
Saving a Marriage. Sometimes, an individual needs space to sort out issues while not totally severing connections with their spouse. Legal separation can help give individuals time to re-establish relationships while not fully severing ties. While it doesn’t happen all the time, many couples do eventually divorce after establishing legal separation.

How To Legally Separate In Texas

In most cases, married couples in Texas typically have to go through a formal divorce in order to become legally separated. However, there are a few ways that a couple can separate without going through the entire divorce process.
If the couple does not want to divorce or they have religious/spiritual beliefs that don’t allow them to get divorced, then the couple can opt for a "decree of separation." This legal separation does not legally dissolve a marriage like a divorce would. When a couple obtains a decree of separation, all marital rights and responsibilities still apply, but the spouses can use this as evidence in court that they were living apart, which could help with future divorce settlements. The decree of separation is not really an enforceable form of separation, but rather a persuasive form that is not recognized in every state, so not all state courts will enforce a decree obtained in Texas. To obtain a decree of separation, an agreement between the two spouses must be made. This cannot be done in court—an attorney or notary public must be present for both spouses to sign the decree. The only other way to get a legal separation in Texas is if a spouse files a petition for protection from abuse. To obtain a Temporary Restraining Order (TRO) to keep that spouse from committing domestic violence, the spouse must file the TRO together with a divorce petition in the proper Texas court. This would not only keep the spouse from committing domestic abuse, but also grant temporary possession of all jointly owned real estate and an exclusive use of the residence to the spouse who filed the petition. However, this type of separation requires proof of serious misconduct by the abusive spouse, such as physical or sexual abuse followed by a real and immediate threat of harm to the spouse or child.

Rights And Responsibilities During A Legal Separation

The rights and obligations of each spouse during a legal separation are generally the same as in a divorce case. Unlike divorce, in which there is a full dissipation of the marital estate, in a legal separation, the parties retain the right to later divorce and obtain a property division. Unless the parties have entered into some sort of temporary order, filed with the court, all property that the parties own will be treated as community property until the parties divorce. Even so, the court can order a temporary division of community property items and provide for payments of child support, alimony, and/or spousal maintenance.
As in a divorce case, child custody issues and child support payments are typically addressed either before or shortly after the legal separation is filed. In most cases, the parties will follow the same course they would if they were preparing for trial or seeking a negotiated settlement of a divorce. Temporary Child Custody Orders are issued while the parties are separated. A Child Support Order can be agreed upon between the parties or sought from the court. Child custody matters will be treated the same as in a divorce case between the parties.
Community property, separate property, and the equitable division of property is the same as in a divorce case as well. Unless an agreement has been reached between the parties, property rights are generally the same. Property acquired as a result of a legal separation remains, until divorced, community property. Once divorced, the property is divided pursuant to a final property division order.

Effects Of A Legal Separation On Family Finances

When a couple legally separates, the ramifications on their finances can be significant. In Texas, there is no official legal status of separation, but spouses often elect to live apart while they pursue divorce. During this period, it’s important to reach an agreement on how to manage debts, income, and assets.
Spousal support, called spousal maintenance or spousal alimony in Texas, is one of the most common concerns of separating couples. In Texas, a judge may order one spouse to pay financial support to the other after divorce if the recipient will not be able to meet their minimal needs. However, there is no such thing as temporary spousal support for spouses who are legally separated. Without divorce proceedings, a Texas court has no power to order spousal support .
Debt is a major concern for separating couples because there is no official status of separation in Texas during which the courts could divide property and debt. If you fail to agree with your spouse on how to handle shared debt, the situation may result in divorce litigation after your physical separation.
Texas law requires the court to divide community property between spouses in a manner that is "just and right." This means that both partners should have a reasonable expectation that their share of the marital estate will be commensurate with 50%, with considerations made for fair division of family-related debts, income necessitated by the legal separation, and the potential for one spouse to be awarded sole ownership of marital property.

Potential Consequences Of A Legal Separation

A legal separation may end in one of a few different outcomes. Not all legal separations lead to divorce. Some married couples take the time to learn more about each other and end their separation period with a reconciled marriage. While this does not happen very often, a legal separation has allowed couples to understand their true compatibility. In some instances, partners also discover that they do not want to divorce simply because their religious or personal beliefs do not condone it.
Those choosing to reconcile from a legal separation will have to work on those issues causing them to separate after filing the petition for legal separation. They can verify their status by obtaining a statement to that effect from their legal counsel, along with a court order terminating the previous legal separation.
If partners become estranged again and are unable to reconcile their differences, they may choose to file for divorce at the end of their legal separation period. The best way to grape the legal ramifications of this process is to consult a Texas divorce attorney.
If a legal separation ends in divorce, spouses must determine child custody and support and visitation prior to filing. They will then file a petition for divorce within 60 days of their first hearing date. Persons involved in a legal separation should hire high-quality and experienced divorce lawyers to receive the best legal outcomes.

Getting Legal Help For A Separation

While a legal separation does not require you to engage the services of a lawyer, some people may find it beneficial to consult with a legal expert or family lawyer throughout the process. A family lawyer who specializes in legal separation in Texas can offer valuable advice on how to handle the arrangement equitably and draw up an official agreement that will be binding and accepted by a Texas court.
If you are not necessarily interested in a permanent divorce, you can choose to enter into a legal separation agreement which documents an arrangement for living separately from your spouse . In many cases, a legal separation will take place while the couple is waiting for an eventual divorce. However, is important to understand that a legal separation does not automatically lead to a divorce. If a divorce is not forthcoming, the separation can actually be prolonged indefinitely.
In addition to helping spouses finalize an agreement, a family lawyer can also be helpful in answering any questions related to the laws governing legal separations in Texas.