If you are pursuing a divorce in Texas, you and your spouse may live separately while the divorce is pending. While there are important factors to consider regarding this separation, they’re fairly manageable.
If, on the other hand, you and your spouse separate rather than divorce – for any reason – and one of you chooses to get a divorce at a later date, the consequences can be significant. If you’re facing a divorce or separation, regardless of the circumstances involved, the first order of business should be consulting with an experienced Round Rock divorce attorney.
Texas Doesn’t Recognize Legal Separations
While many states afford married couples the option of legally separating, Texas isn’t one of them. In the State of Texas, you’re married until you’re divorced, and this can add up to serious legal consequences if you go about your business as if you’re single – even if you haven’t seen your spouse for years – and one of you ultimately decides to seek a divorce.
While it’s difficult to predict what the future will bring, one of you may choose to remarry someday or to simply wipe the slate clean, and at that point, you could face problems.
Marriage is a contract that can’t be dissolved in Texas other than through divorce. And this makes proceeding with caution well advised if you’re considering separating from your spouse rather than divorcing them. Better understanding the legal ins and outs of separation in Texas can help you make the right decisions for you.
While Texas does offer a separation agreement, which affords some protections that simply separating does not, it is not a substitute for a divorce if you need one. Further, separation agreements don’t have the same level of enforceability that divorces do.
Alimony
Alimony in Texas is called spousal maintenance, and it is only ordered in situations in which divorce leaves one spouse without the financial means to cover their reasonable needs while the other has the ability to assist. While your spouse may not be entitled to alimony at the time of your separation, that doesn’t mean they won’t be once you’ve been separated for some time.
Your Spouse’s Ability to Work
If your spouse – over the course of your separation – becomes ill or is, otherwise, unable to work and fully support themself, they may be entitled to alimony. Had you divorced instead of separated, on the other hand, this wouldn’t be a consideration.
The Length of Your Marriage
Alimony in Texas is based on several important factors, and a primary concern is the length of the marriage. The longer your marriage, which includes the amount of time that you were separated, the more likely alimony becomes, the higher your payments are likely to be, and the longer you’ll likely be required to pay.
In a Texas marriage that lasts fewer than 10 years, courts don’t have the discretion to order alimony unless there is an extenuating circumstance, such as the recipient having a debilitating illness or injury, involved. A separation, in other words, could play a primary role in whether or not you’ll ultimately be required to pay alimony.
Alimony Basics
Texas sets a maximum alimony obligation, which is $5,000 per month or 20 percent of the payor’s gross income – whichever is less. There are also maximum durations for all cases other than those in which the recipient has a debilitating disability, and they include:
Up to 5 years of alimony if the marriage lasted from 10 to 20 years
Up to 7 years of alimony if the marriage lasted from 20 to 30 years
Up to 10 years of alimony if the marriage lasted more than 30 years
Alimony is a serious consideration when it comes to long-term separations.
Community Property
Texas is a community property state, which means that every asset you, your spouse, or the two of you together acquired while you were married – or separated – belongs to both of you and must be divided fairly in the event of divorce.
The same is true of the debts either or both of you acquired during your marriage. If you separated prior to divorce and you accumulated a significant amount of assets during your separation while your spouse took on a considerable amount of debt, you could take a serious financial hit in your divorce.
Marital Assets Aren’t Necessarily Divided Equally
While your marital assets will not necessarily be divided equally in a Texas divorce, the division will need to be addressed by the court if you and your spouse can’t negotiate mutually acceptable terms. If you were separated prior to divorce, you can expect all the assets you acquired during your separation to be taken into careful consideration by the court.
Your Spouse’s Debt
The matter of debt shouldn’t be ignored in the context of separation. During the course of a separation, you could be on the hook for your spouse’s debt. For example, if your spouse becomes seriously ill and is facing crippling medical bills, you have financial liability based on your marriage, and collections could come after you for payment.
The bottom line is that your finances will remain intertwined with your spouse’s until you’re divorced, and because life is unpredictable, this fact can lead to very serious financial consequences.
Wilson v. Wilson
In Wilson v. Wilson – a 2001 divorce case – the couple married in 1968 and separated in 1990. In 1998 they filed for divorce, and it went to court in 2020. The appellate court that reviewed this case spoke to the issue of property division with the following statement:
Because the Wilsons were still married even after their separation in 1990, the property they continued to acquire between the date of separation and divorce was still considered community property, unless either spouse could establish that the property was separate property . . . under Texas law.
Upon Either Spouse’s Death
The effects of separation can be even more financially jarring upon either spouse’s death. if you’ve been separated for a considerable amount of time and have accumulated considerable assets during that time, half of your estate will belong to your spouse in the event of your death.
This is in accordance with the state’s laws of intestacy, which ensures that your estate is owned – in part – by your spouse, even if you’re separated, and as such, they are entitled to their portion upon your death. This fact cannot be overridden by a will and should be carefully considered in relation to your separation.
The Presumption of Fatherhood
There is also the matter of parenthood to consider in relation to separation. In Texas, when a married mother has a child, her husband is the presumed father, which makes him the legal father.
This means that a wife who is separated from her husband can seek child support from him while the husband can pursue a parenting time schedule – even when it’s clear that the child isn’t the husband’s.
While paternity of the child – or determining who the child’s biological father is – can be established through agreement between the biological mother and father, litigation is sometimes required. This means that – if you’re separated – you could be involved in a parenthood case that you wouldn’t be if you were divorced.
Remarriage
It should go without saying that, if you are separated, you can’t remarry, but the issue can become complicated. This is just as true if you separated yesterday or separated decades ago and haven’t seen or heard from your spouse in ages.
Consider a 2001 Texas case in which the husband died in a car accident, and two women fought over his estate. His first wife claimed that, while they had divorced, they’d remarried outside the United States and had later separated without either divorcing or obtaining an annulment. The man’s second wife, however, denied that he’d ever remarried his first wife.
While the court granted a judgment for the man’s second wife, his first wife appealed, and the appellate court sent the case back to the trial court for additional proceedings.
Ultimately, the first wife prevailed because she had evidence that supported her claim of a second marriage, and the second wife couldn’t prove that it was invalid as a matter of law in Texas or in the country in which it took place.
The court’s assessment of the second marriage was that a marriage is void if it is entered into when either party has an existing marriage to another person that has not been dissolved by legal action or terminated by the death of the other spouse.
Legal actions after a separation can be far more complicated and more costly than they would have been in the event of divorce – and the outcomes are unpredictable.
Cautionary Tales
Pilot Life Insurance Company v. Koch
In the case of Pilot Life Insurance Company v. Koch, the appellate judge determined that there is no status of legal separation of a husband and wife under Texas law prior to the marriage being dissolved by a decree of divorce.
The husband in this case received the life insurance proceeds from his wife’s death after a separation and after filing for a divorce in which temporary orders were already in place.
Morales v. Morales
In Morales v. Morales, the couple had a separation agreement in place for nearly a decade when the husband learned that it wasn’t enforceable in their case. The specifics include:
The couple had been married for more than 40 years when the wife filed for divorce.
The couple decided – at mediation – to permanently separate rather than divorce.
Years later, the wife sued her husband for fraud and breach of contract regarding their separation agreement due to what she alleged was his misrepresentation of their assets.
The jury in the case found the separation agreement unenforceable, and the wife was awarded more than $700,000 as well as both prejudgment and post-judgment interest.
In other words, entering a separation agreement can come back to haunt you in surprising and costly ways.
Don’t Set Yourself Up for Unfortunate Legal Consequences
If you and your spouse are on the fence about divorce, a temporary separation that includes a solid separation agreement may be a good option. This approach affords you the opportunity to assess your feelings and to appreciate what divorce would likely mean for you.
If, after giving it some time, however – it becomes clear that you and your spouse won’t be reuniting, it’s a good time to consider divorce.
The longer your separation, the more likely you are to face unpredictable consequences that aren’t in keeping with your best interests. If you’ve made up your mind that you and your spouse won’t ever be living together as a married couple again, a compassionate divorce attorney can help you explore your best options, protect your financial rights, and safeguard your future.
If your reason for not pursuing a divorce is religious in nature, honoring your personal beliefs is important. Having professional legal counsel on your side at this juncture will help ensure that you recognize the implications of a separation and establish a solid separation agreement that protects your rights to the degree possible and serves as a guide on your path forward.
Don’t Delay Consulting with an Experienced Round Rock Divorce Attorney
While separation may have seemed like a good idea at the time, it’s important to recognize that separating long term – instead of divorcing – can lead to unpredictable consequences that may not serve your best interests.
Brett Pritchard at The Law Office of Brett H. Pritchard – proudly serving Round Rock, Texas, for more than 20 years – is a focused divorce attorney with considerable experience helping valued clients like you explore their best options in relation to potential separations.
Your future is important, and we can help you safeguard it – whether that means within a separation agreement or divorce. Learn more by contacting or calling us at 254-781-4222 today.