Texas Legal Separation
In Texas, the term "legal separation" does not have any particular legal significance. When a couple decides to live apart without obtaining a divorce, they are typically said to be living apart in a "separation". Legally speaking, however, there is no such thing as a legal separation in the state of Texas. Typically, people who say they are legally separated in Texas are living apart and entering into a written agreement with one another. Written agreements between spouses during a period of separation may address issues such as child custody, child support, alimony, debt repayment, and property division, among others. If a married couple has reach such an agreement, they should both carefully read the terms and conditions before signing it. When signed, the written agreement may be used as evidence in court if the couple later decides to divorce. Some couples enter into written agreements without subsequently divorcing. For example, a couple may enter into a legally binding separation agreement with the intention of living apart for the rest of their lives without ever getting divorced. Couples may also decide to live apart temporarily while resolving marital problems or during proceedings related to an impending divorce. Note that Texas law does not require couples to enter into legally binding separation agreements when living apart. In fact, many make do without these documents. Living separately does not stop spouses’ legal duties toward one another. Texas family law considers a married couple to be legally married until a divorce decree has been entered into the court records. Therefore, unless you have obtained a divorce, you are still legally married and have the same legal rights and obligations as any married couple in Texas. Until you have obtained a divorce, you and your spouse remain equally responsible for any debts that you may have incurred during your marriage . Moreover, you would still be entitled to any income or property that your spouse may have acquired during the course of the marriage. A legal separation agreement does not bring about the termination of the marital relationship. If you and your spouse want to dissolve the marriage, you must obtain a divorce, either by filing for divorce or by filing a joint petition for divorce. Couples faced with the choice between legal separation and divorce should carefully consider their options. There are advantages and disadvantages to each option, and these will depend on the couple’s unique circumstances. In most legal separation arrangements, the couple agrees to split the household. The spouse who moves out of the home is often entitled to alimony, child support, or a combination of both. The couple may also agree to divide up debts, including mortgage payments, student loans, and credit card debt. Separating debts and income may be beneficial from a practical and financial standpoint. In Texas, legal separation is often used as an alternative to divorce. Separation may help couples determine whether they want to live apart permanently or repair their relationship. It’s a viable option for those who seek time apart but aren’t ready to obtain a divorce. However, legal separation does not provide legal protections for either spouse. As previously mentioned, it doesn’t terminate the marriage or protect either spouse from being held responsible for debts or obligations acquired during the marriage. For couples who are comfortable with the idea of divorce, one of the simplest and most straightforward ways to legally separate from a spouse might be to do so through the process of collaborative divorce. The collaborative divorce process allows the couple to resolve the marriage without dissolving the marriage. It also takes place outside a traditional courtroom setting.
Why You Might Need a Legal Separation
A legal separation in Texas is different than a divorce. You may be legally married, but physically separated from your spouse. Why would anyone want to remain legally married while they are living apart, anyway?
There are several reasons why a couple may choose to be legally separated rather than divorced. Many people have religious convictions that consider divorce to be a sinful act. Others may want to wait until their children are grown before filing for divorce. Sometimes, couples separate in order to have time apart to see if the relationship is truly over.
It can also be beneficial from a financial standpoint to be legally separated before filing for divorce. If the couple has been married for less than 10 years, there is no automatic right to receive spousal support in Texas. However, if you are separated for at least a year and your spouse was the primary income earner, you may have a better chance of qualifying for spousal support when you do later file for divorce.
It’s also possible to have the court decide how marital property will be divided instantly. This can be important in the case of a business, which either spouse has the potential to destroy at any point while the case is pending.
By being separated and having clear financial guidelines, spouses can avoid incurring large amounts of debt or liquidating marital assets before the divorce is finalized. Also, once you are legally separated, there are limitations to what the spouse gets can do with the money, including transferring assets to a non-marital account or spending large sums of money on separate vacations or other endeavors. It’s no longer "your money" – it’s the legally-defined "marital property." (There are some exceptions to this, which is why an attorney can help you set this up properly.)
When it comes to your children, getting a head start on custody arrangements is also essential. If one spouse is moving out of state, getting the child’s primary residence decided has to happen before you go. Of course, a custody arrangement could be violated at any time. Without a protective order in place, anything can happen.
If a spouse is abusing drugs or alcohol, or committing crimes, securing the child’s primary residence can make it more challenging for them to keep a job or as a parent. These protections help establish what will have to happen when you do file for divorce.
Steps to a Legal Separation
When spouses decide to separate or when only one spouse decides to leave, a legal separation can help, and it is possible in Texas. However, in order for a legal separation to occur, certain steps must be taken. These steps are as follows.
Both spouses should draft a separation agreement that contains all the details of the separation. The separation agreement should contain the terms of the living arrangements, property and asset division, and any other important details that outline how the separation will occur and the financial responsibilities of both spouses. If minor children are involved, the separation agreement should also include child visitation and support specifics.
After filing the separation agreement with the court, the agreement must then be filed with the clerk of the court in the appropriate county. The filing should include the signatures of both spouses as well as their attorneys, if they have retained one. Once the separation agreement is filed, the provisions included in it become legally binding for the duration of the separation. A legal separation is just as enforceable as a divorce order is. As a result, if one spouse fails to follow the terms of the separation agreement, the agreement can be modified or could even result in sanctions or a contempt of court order.
When spouses decide to separate, it’s critical that they consult with an attorney about the separation and what provisions should be included in the separation agreement. Experienced Dallas divorce attorneys can help spouses prepare for the separation and ensure that their rights are protected.
Entering a Separation Agreement
A separation agreement is drafted to outline all of the issues that are present in any divorce case. The separation agreement should include division of all assets and income, characterizing the property as community property or separate property, a division proposed for the children in the case, a proposed division for spousal support, and any other agreed orders or conditions necessary to determine the issues presented in the case. The separation agreement should include very specific terms regarding any property or children in the case. The Current Spousal Support Guidelines in Texas will provide guidance as to how much alimony will be paid in the case given the terms in the separation agreement. The guidelines will also give a maximum limit as to how long alimony would be paid. All of the agreements in the case must be very specific and outline how the parties have agreed to resolve all of the issues.
Legal Separation – Things to Consider
When it comes to financial matters, legal separation has a direct impact on the obligations of spouses regarding spousal maintenance (similar to alimony in some other jurisdictions), debts and assets. For Texas residents, the community property laws governing the distribution of assets and debts between spouses do not change simply because a couple is legally separated rather than legally divorced, but marital agreements often dictate how assets are to be managed during the separation.
Texas courts are able to make temporary orders regarding spousal maintenance, the possession of children and the payment of child support. Courts can also issue temporary restraining orders to prevent one spouse from transferring, disposing of or altering the status of any marital property.
Couples may find that they are unable to file taxes jointly . In most cases, married couples file joint returns to maximize their tax benefits. However, in cases where one or both spouses has no income, a separation eliminates that option.
Tax refunds may also be an issue. While a couple is legally married, they can benefit from combining their incomes in order to establish generating low or no taxable income despite earning a higher income single than they would together. A legal separation raises the risk that one spouse will report a significantly higher income without tax credits or deductions, thereby paying more in taxes than necessary.
Health insurance coverage may also suffer. Coverage through the spouse’s employer may not apply to the other spouse once he or she no longer lives with the employee spouse. Coupled with issues related to child support, legal separation can have a dramatic impact on a couple’s finances.
Getting Legal Help
Before you end your marriage through a legal separation, you may want to consult with an experienced family law attorney in your area. Even if the separation involves relatively straightforward issues, it is important to receive sound legal advice to avoid potentially costly mistakes later on. In Texas, family law cases can be extremely complex with regards to assets, debts and custody concerns. Even if you and your spouse have a complete agreement as to how to separate your assets, it is crucial to review this information with an attorney beforehand. Indeed, even when it may not seem like an issue, a few hours of legal advice can be extremely beneficial in the long run.
Frequently Asked Questions
How does legal separation affect child custody and parenting time?
If you have children, the legal separation process will require you to establish a parenting plan. In your parenting plan, you should attempt to define how both you and your spouse will engage and parent the children. Once the parenting plan is completed and the legal separation finalized, you can outline how activities like visitation, child support, and legal access to the children will work.
What does separation mean in Texas?
You can be separated without filing for legal separation. It generally means that spouses are living apart from one another and that there is a clear intent on the divorcing couple’s part that the divorce is permanent. An official separation doesn’t have any legal status so you should not expect a separation decree or other formal separation document to be issued. However , legal separation often entails filing a Petition for Divorce in order to get things formatted correctly and so that there is an official record of the separation.
What happens if my spouse doesn’t agree to a legal separation?
Legal separation agreements do not need to be mutually agreed upon. You can file for legal separation even if your spouse is not in agreement. Just under Texas law, you are required to have been a resident of Texas for at least the past six months and at current reside in the county where you are filing.
Is legal separation a necessary step on the way to divorce?
No. Legal separation is not required. You can immediately file paperwork to initiate a divorce if you and your spouse have been married for at least 10 years and do not have any children, haven’t lived apart for at least three years, have no joint property or debts, and have signed, notarized, and executed agreed divorce documents. If you and your spouse have minor children, you cannot get an agreed divorce and so filing for legal separation may be a positive short-term alternative for you.