Texas is one of only a few states that does not allow married couples to seek legal separation. If you want to end your marriage in the State of Texas, your only option is divorce. However, you can take several steps to achieve what amounts to a legal separation – although you may not have the same level of financial protection.
If you have questions or concerns about legal separation, reach out for the skilled legal guidance of an experienced Austin divorce attorney today.
Separation Laws in Texas
The State of Texas does not recognize the status of legally separated couples. In Texas, you are married until you obtain a divorce – with no exceptions. This legal requirement is an important point to consider in terms of your marital assets and debts.
Some couples do not wish to remain married but don’t consider divorce an option – often for religious reasons. These couples can achieve something very close to a legal separation in Texas, but skilled legal representation is advised.
A Temporary Informal Separation
If you and your spouse are considering a divorce but aren’t sure whether it’s right for you, you can test the waters by living separately. However, the State of Texas will continue to recognize you as a married couple during your separation. As such, many couples enlist the help of a skilled family lawyer to help them craft a temporary, informal separation.
A temporary, informal separation can provide you with the opportunity to explore your best options, which may lead to a divorce or to a reconciliation. To arrange an informal separation, you’ll need to negotiate terms that you’re both willing to accept for all of the following matters:
Who will live where
How you will divide your time with your shared children
Who will be responsible for paying which bills
The matter of spousal support – if one of you doesn’t have the financial resources to support yourself
The matter of child support
During a separation of any length, the assets that either of you come to own and the debts that either of you acquire are considered marital. In the event of divorce, you’ll need to divide these assets and debts between you in a manner that is considered just and right. In other words, you could face more debt than you took on, and you may have to share the assets you acquired during the separation.
Common Reasons for Choosing Separation over Divorce
Couples divorce for a wide range of reasons, and the same is true of separations. There are, however, several reasons that couples tend to choose separation over divorce.
Testing the Waters
When a couple is facing problems within their marriage but isn’t sure they are ready to call it quits, a separation can afford a kind of time-out. Some couples obtain the clarity to save their marriages, while others recognize that a divorce is in order.
It’s not unusual for married couples to go through rough patches, and temporary separations help some of these couples avoid rushing toward divorces that could have been avoided.
Upholding Personal Beliefs
Some couples have personal reasons for foregoing divorce – even when they’re no longer interested in living together as a married couple. These reasons are often based on religious beliefs, personal beliefs, or cultural standards.
Avoiding Court Orders about Child Custody Arrangements
When a couple who shares children divorces, they obtain court orders that address parenting time, decision-making authority regarding their children, and child support. When a couple separates, they can resolve these matters informally between themselves without the court’s involvement – bypassing court orders in the process.
Despite this benefit, it’s important to note that the court’s intervention is required if the separating couple can’t resolve these concerns between themselves.
Even a straightforward divorce can end up being quite costly, and there are future financial implications to consider. Couples who separate can continue to file their taxes together, which can lead to significant savings. They can also remain on one another’s employment-based health insurance. There are financial advantages to marriage, and couples who separate can still benefit.
Addressing Immigration Concerns
Some couples choose not to divorce in response to immigration concerns. When one spouse is undocumented, divorce can lead to deportation.
There Is No Automatic Divorce after a Long Separation
It’s important to understand that divorce is never automatic. If you are married, you must go through the legal steps of divorce, and the matter must be finalized before the marriage ends. As such, you can’t remarry until any prior marriage ends – through divorce or death. Even when a couple is separated for decades and is completely estranged, they remain legally married.
A skilled Round Rock divorce lawyer can help you assess your marital status and create a plan to protect your financial and parental rights moving forward.
Abandonment Is Distinct from Separation
Many states are moving away from fault-based divorces. While Texas allows divorces that are predicated on one spouse’s fault, the vast majority of divorces issued are no fault, which means they are based on irreconcilable differences – or what the state calls “insupportability.”
Texas recognizes several categories of fault, and one of these is abandonment of at least a year.
Abandonment refers to one spouse leaving of their own accord – rather than as a mutual agreement between the spouses. Generally, the following must apply before the court will grant a divorce based on abandonment:
The spouse who abandoned the other made a unilateral decision to do so.
The spouse who abandoned the other provided the other with no financial support.
The spouse who abandoned the other made no effort to communicate with the other.
Separation differs greatly from abandonment. Separation is typically a mutual decision between both spouses that can bridge the gap between marriage and divorce. Couples who separate generally communicate on relevant matters, such as finances and parenting time. Someone who abandons a spouse is more likely to ignore these issues and make themselves unavailable.
Texas Requires No Separation Period Prior to Divorce
Texas is one of the few states that doesn’t recognize legal separation, and it also doesn’t require a separation period prior to divorce. While Texas does implement a mandatory 60-day cooling-off period before a divorce can be finalized, couples aren’t required to live separately or to separate their lives in any way prior to filing.
Texas’s 60-day requirement means that your divorce can’t be finalized until at least 61 days after you file, but many divorces require considerably more time to resolve the relevant terms involved:
The division of marital property
Child custody arrangements
Working with a seasoned Round Rock divorce attorney will help you resolve your divorce terms in the most efficient way possible, all while protecting your financial and parental rights.
Filing for Legal Separation in Texas
There are steps you can take in the State of Texas to approximate a legal separation – and protect your rights in the process.
Partition and Exchange Agreement
Couples can turn to a partition and exchange agreement to divide their marital property in a manner that approximates a legal separation in other states. When these agreements are created in accordance with the law, are in writing, and are signed by both parties, they are legally binding. For best results, work closely with a seasoned Round Rock divorce attorney.
It’s important to note that partition and exchange agreements remain in effect until they are invalidated by the participating parties. This arrangement means that if you reconcile and your spouse dies prior to revoking the contract, your property rights can be seriously curtailed. However, if you do go on to divorce, the agreement will prevail, and each of you will keep the assigned property.
Suit Affecting the Parent-Child Relationship
When Texas courts address matters related to child custody outside of divorce, the process is called a suit affecting the parent-child relationship (SAPCR). In such cases, the court can address parenting time, legal custody (decision-making authority), and child support – just like it would in a divorce.
If you and your separating spouse are able to negotiate each of these terms between yourselves, you won’t need the court’s involvement. Because Texas courts do not recognize legal separations, you will be free to proceed as you see fit.
The matter of spousal support (also called alimony) can also be resolved between the two of you or can be addressed by the court. When determining spousal support, the court will turn to factors such as the duration of your marriage to date, each of your contributions to the marriage, and the financial situation each of you faces.
The answers to the following frequently asked questions may help you better understand legal separation and what it might look like for you. If you have questions specific to your situation, reach out for the legal counsel of a knowledgeable Round Rock divorce attorney.
Can We File for a Legal Separation in Texas?
You can’t file for a legal separation in Texas because the state considers couples married until they’re divorced – with no middle ground. However, there are legal steps you can take to approximate a legal separation, which can help you protect your financial and parental rights throughout your separation.
How Do I File for Legal Separation in Texas?
Many couples wonder how to file for separation in Texas, but the truth is that the state has no such process. However, you can take the following important legal steps, which will provide you with many of the same protections as a legal separation:
File a partition and exchange agreement to address the division of your marital property
File a suit affecting the parent-child relationship to address child custody arrangements and child support
Address the matter of spousal support with the court
Do You Have to File for Separation before a Divorce in Texas?
Do you need a legal separation before divorce? No, Texas does not require a separation prior to divorce and has no legal mechanism in place to file for a separation. However, couples must wait at least 60 days after filing before their divorces can be finalized in the state.
What States Require Separation before Divorce?
Many states have specific separation requirements before a couple can seek a divorce. In some states, the required separation is longer if the divorcing spouses share children or are not in agreement on the matter of divorce in the first place. While the separation requirement typically doesn’t apply to fault-based divorces, this isn’t always the case.
In Texas, there is no separation requirement, but a divorcing couple must wait at least 60 days after filing before the divorce can be finalized.
If We’re Separated Long Enough, Isn’t Divorce Automatic?
Even a very long separation with little or no contact between the couple does not mean they are automatically divorced. The only way to achieve the dissolution of a marriage contract is with a divorce.
If you have been separated for many years in Texas, the assets and debts that each of you accumulated during this time are very likely to be considered marital, which can make the matter of property division that much more challenging if you do end up going through a divorce.
Is There a Common-Law Separation in Texas?
If you and your partner are in a common-law marriage, you need to understand that there is no common-law separation or divorce in Texas. If your union is a common-law marriage, there isn’t an expedited version of divorce that applies. Just as there is no legal separation for married couples, there is no legal separation for couples who are married as a matter of common law.
If you are in a common-law marriage and have questions about your specific situation, reach out for professional legal guidance.
Make the Call to an Experienced Austin Divorce Attorney Today
Brett Pritchard at The Law Office of Brett H. Pritchard – proudly serving Austin, Texas – is an esteemed divorce attorney with a keen understanding of the legal intricacies related to separation. Protecting your financial and parental rights is key, so don’t wait to reach out and contact us online or call us at (254) 781-4222 to schedule a FREE consultation and learn more about what we can do to help you.