Do You Have to Separate before Divorce in Texas?

Texas couple separating before divorce

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If you’re preparing to file for divorce or are already facing a Texas divorce, it’s a confusing time, and you likely have plenty of questions. Many divorcing couples have concerns about whether or not they need to live separately before the divorce can be finalized, and while some states do have requirements regarding separation, Texas is not one of them.

Turn to an experienced Killeen divorce attorney with your questions and concerns about the divorce process in Texas.

Texas Doesn’t Have a Separation Requirement

The State of Texas doesn’t have a separation requirement for divorcing couples, which means you and your divorcing spouse can continue living together until it’s convenient for you to begin living separately or until you’re prepared to do so. However, it’s important to remember that Texas doesn’t recognize what many other states identify as legal separations.

In Texas, you’re married until you’re divorced, which means that any assets or debts either of you acquires are considered marital – even if you’re living separate lives. Further, entering a new romantic relationship while living separately is considered adultery, and it can affect your divorce terms.

The 60-Day Cooling Off Period

Texas requires a 60-day waiting period between the time a couple files for divorce and its finalization. This window is often referred to as a “cooling-off” period, and it means that your divorce will take at least 61 days to process. However, most divorces take considerably longer to resolve, and as a result, many couples live separately in the interim.

If your goal is to finalize your divorce as efficiently as possible, work closely with a Killeen divorce attorney to keep things moving forward while also protecting your rights.

Living Separately

Many divorcing couples choose to live separately throughout the process. Divorce is stressful, and emotions tend to run high, which can make remaining under the same roof exceptionally challenging.

If you and your soon-to-be ex choose to live separately, you’ll likely need to address temporary terms, such as spousal maintenance, parenting time, and child support, until your divorce is finalized and your terms are ordered.

If you and your divorcing spouse have already hammered out terms that are mutually acceptable, you can implement these during your separation. If not, you may need the court to issue temporary orders until the terms can be resolved through the divorce process.

Your Temporary Child Custody Arrangements

If you and your divorcing spouse separate while your divorce is pending, you’ll need to address the matter of your child custody arrangements. Texas separates child custody into legal custody and physical custody.

Legal Custody

Legal custody refers to each parent’s decision-making authority. You may continue making decisions together the way you did while married, but there are other options:

  • Making the decisions together but one of you taking on tie-breaking authority for those instances when you can’t find common ground

  • Dividing the decision between you according to category

  • One of you being awarded sole legal custody and making these primary decisions on your own

The kinds of decisions addressed by legal custody include those related to the following topics:

  • The school or daycare your children attend

  • The healthcare your children receive

  • The travel and extracurricular activities your children participate in

  • The religious education your children receive

  • Where your children make their primary home – if one parent is awarded the role of primary custodial parent

While your divorce is pending, you’ll likely continue making these decisions together until this term is ultimately resolved.

Physical Custody

If you and your divorcing spouse separate while your divorce is processing, you’ll need parenting time terms that determine when your children are with you and when they’re with their other parent.

You’ll want to consider the matter of physical custody carefully because Texas courts are always guided by the best interests of the children when it comes to child custody determinations. One of the best interest factors is how well the children are served by the status quo (meaning their current living situation).

If it’s your goal to remain in the family home as the primary custodial parent post-divorce, moving out prior to divorce is unlikely to serve your purposes. Strategizing the best path forward with your dedicated Killeen divorce attorney is advised.


When it comes to parenting time, your options include one of you becoming the primary custodial parent who is awarded the majority of the children’s overnights or dividing your time with the kids more evenly. The court generally employs standard parenting time schedules, but you and your soon-to-be ex can also create one that works better for your family’s schedule.

While there’s no guarantee that the parenting plan you implement during your separation prior to divorce will become your permanent parenting plan, the court will take it into careful consideration when resolving this divorce term. In other words, agreeing to an unfavorable schedule for the sake of expediency is not a good game plan.

Best Interest Factors

As mentioned, Texas courts look to the best interest of the involved children when making parenting time determinations. In addition to considering how well the children’s current home, school, and community are serving the children, the court looks at the following factors:

  • The children’s ages and developmental stages

  • The children’s physical, emotional, and educational needs, including any special needs

  • Each parent’s ability to effectively address each child’s needs

  • The relationship each parent has fostered with each child

  • Each parent’s level of involvement with the children so far

  • Each parent’s desire to co-parent effectively

  • Each parent’s level of commitment to supporting the other’s ongoing, healthy relationship with the children

  • The preferences of those children considered old enough and mature enough

  • The distance the parents live from one another

  • Whether domestic violence, child abuse, or child neglect is a concern

The Court’s Position

Texas courts take the position that children are best served when they have the opportunity to spend time with both parents. As such, their goal is maximizing each spouse’s parenting time – barring a significant reason for seriously limiting one parent’s access to the children. Even when one parent takes on the primary custodial role, the other parent can usually expect a generous parenting time schedule.

Child Support

Child support is based on state guidelines that are fairly straightforward, which means there is less room for variance. A range of factors help determine the amount of child support paid, but the primary concerns are parenting time and income. Generally, the parent who earns more has the child support obligation even when parenting time is split evenly.

If you and your spouse separate prior to divorce and look to the court for temporary child support orders, the orders issued are likely to reflect your post-divorce orders.


Alimony is called spousal maintenance in Texas, and it is reserved for highly specific circumstances in which the divorce leaves one spouse unable to cover any reasonable needs – while the other has the resources to help. Reasonable needs here are relative to the standard of living achieved during the marriage.

Spousal maintenance during separation is often awarded to help ensure that the spouse who earns less has the means to cover expenses until the divorce is finalized and marital assets are fairly divided. In other words, being awarded temporary alimony does not guarantee that alimony will be a term of your divorce.

While Living Separately

If you and your spouse are living separately while your divorce is pending, you’ll both have bills you need to pay and other ongoing expenses. If one of you earns significantly less than the other – or doesn’t work at all – the matter of who will be paying for what will need to be addressed, and temporary alimony is often the solution.

When Alimony Is Awarded upon Divorce

Alimony is only awarded upon divorce when one spouse doesn’t have the resources to cover reasonable needs once the divorce terms are resolved. When it is awarded, it’s generally set for an amount and duration that allows the recipient to seek the further education, job skills, or job training necessary to gain financial independence.

The following factors are considered in alimony determinations:

  • Each spouse’s separate assets, which refer to the properties owned prior to divorce and kept separate throughout

  • The size of the marital estate

  • The contributions each spouse made to the marriage, including caring for the children and home

  • Any sacrifice either spouse made to support the other’s career

  • Each spouse’s current earnings

  • Each spouse’s division of marital assets

  • Each spouse’s level of education and earning potential

  • The job market and the likelihood that the alimony recipient will obtain work that supports his or her reasonable needs

Discuss your case with a seasoned Killeen divorce attorney to learn more about whether alimony will apply in your case.

The Division of Marital Property

The division of marital property tends to be one of the most complicated and most hotly contested divorce terms. This matter won’t be resolved until your divorce is resolved, and how your marital property is divided can affect your final child support and alimony terms. In Texas, all assets acquired during the marriage are considered marital, with only two exceptions:

  • Gifts or inheritances that either spouse received in his or her name alone

  • The pain and suffering component of any civil claim either spouse brought during the marriage

Marital assets must be divided between both spouses in a manner that is fair given the circumstances of the marriage and divorce, and while this can mean equally, it doesn’t always.

The following factors are considered in the division of marital property:

  • Whether wrongdoing played a role in the breakdown of the marriage – even in no-fault marriages

  • Each spouse’s age and overall mental and physical health

  • Each spouse’s level of education

  • Each spouse’s contributions to the marriage, including homemaking

  • The length of the marriage

  • The tax consequences of the proposed division

  • Each spouse’s financial obligations

  • Any fraud on the estate or dissipation of funds in the buildup to the divorce

  • Each spouse’s financial opportunities

FAQ about Separation in Texas

The answers to some of the most frequently asked questions about separation and divorce may help you with your own case. If you have specific questions about your situation, contact a knowledgeable Killeen divorce lawyer.

Do You Have to Be Separated before Divorce?

In the State of Texas, there is no separation requirement prior to divorce. Because it can take a considerable amount of time to finalize a divorce, however, many couples do live separately during the process.

How Will I Pay the Bills while Living Separately?

If you and your spouse separate while you’re divorcing and you have considerably less income than your ex, you may need to obtain temporary orders from the court. The court can require your divorcing spouse to cover specific bills and may award child support and maintenance while your divorce is pending.

Can I Expect My Temporary Orders to Become Final Orders?

You can’t depend upon the temporary orders issued, which are designed to address the situation prior to your marital assets being divided fairly, to become your final divorce orders. However, if your temporary parenting time orders serve your children well, the court will take this fact into careful consideration in its final decision.

An Experienced Killeen Divorce Attorney Can Help

Brett Pritchard at The Law Office of Brett H. Pritchard is a formidable Killeen divorce lawyer with decades of impressive experience skillfully guiding challenging divorce cases like yours toward favorable resolutions that support our clients’ brightest post-divorce futures. Learn more by contacting us online or calling us at (254) 781-4222 and scheduling your FREE consultation today.

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