What Does it Mean to be Legally Separated in Texas?
Even though there is a designated "separated" section on the Texas divorce forms, there is no actual recognized legal separation in Texas. At least, not in the way most people think of the term. You can physically separate from your spouse, but you won’t have formal status armed under the law.
In Texas, the term "legal separation" is often used loosely to describe a physical separation of spouses who do not want to immediately pursue divorce. Since Texas does not have any type of legal separation, if you or your spouse are not ready to jump into one of two legal outcomes , legal separation in Texas will simply refer to living physically apart from your spouse.
You can have a physical separation without a divorce, but there is no such thing as a legal separation. A legal separation does not prevent either spouse from actually going through with a divorce or remarrying. For legal purposes, the only thing that legally separates people in Texas is divorce.
It’s theorized that the amendment was originally written for the purpose of protecting religious institutions by allowing them to deny marriage licenses to same-sex couples based on religious grounds. Instead, it did much more by unnecessarily affirming the current legal status of marriage in Texas under state law.
Drafting a Separation Agreement
While Texas does not recognize separation in the same way as states that do provide a legal separation process, married couples can create a binding separation agreement. This is important for those who are uncertain about divorce or want to avoid the cost and time of divorce at a particular moment. Such a written agreement is enforceable in a Texas court. The separation agreement should include provisions for any of the same topics as a divorce decree. For instance, the couple may agree on child custody and child support terms, property division, and spousal reporting for the purposes of a government benefit or another purpose. The separation agreement may also designate one spouse as legally responsible for any financial obligations, such as credit cards or another type of debt. The spouses may also designate the separation period, such as for five years, or until one spouse remarries. They can also agree on whether they will continue to file a joint tax return. As with a divorce decree, the terms of the separation agreement require parties to obey the terms. There can be enforcement proceedings for a violation. However, if the couple uses the separation to journey toward a peaceful divorce process, there may not be any urging to enforce a violation.
Essential Elements of a Separation Agreement
When two spouses decide to live apart from one another, they don’t have to get a divorce immediately. In addition to filing for a no-fault divorce from bed and board that formally separates the parties, they can draft a legal separation agreement that memorializes their rights and responsibilities while living apart. Many couples find separation agreements beneficial because they allow time to adjust to living apart and to address issues regarding child custody, child support, spousal maintenance, community property division, and other pertinent matters.
The law does not require that Texas couples separate before filing for divorce. However, separating may benefit some spouses. For example, some religious sects or denominations do not recognize a divorce, so they cannot obtain help from the courts unless they remain legally married. Others may see benefit in separating for financial reasons or to simply have breathing room in the marriage to see if the separation will reduce the level of conflict in the couple’s relationship.
The main elements that should usually be included in a separation agreement include:
For many couples, their lives will be different for a time – whether that is months or longer – so it’s important that all aspects of their lives are covered in detail in the separation agreement. Otherwise, their agreement could be breached based on failure to address a particular issue, such as joint credit cards or a jointly owned vehicle. The time and money spent on covering all bases in the agreement is always worth it if it helps the couple avoid having to address the issues in court.
Legal Significance of Separation Agreements
Understanding the legal implications and benefits of having a separation agreement
Once you have agreed to separate, you may be tempted to call a divorce attorney anyway, just to finalize the process. However, if you and your spouse see the benefits of separation, but don’t necessarily want to go through with a divorce right away, a separation agreement can help you solidify that temporary arrangement. Because this will likely lead to a legal divorce anyway, this step is arguably a waste of time and money. However, many couples are allowed to benefit from the protection such agreements can provide while avoiding messy divorce paperwork, child custody fights and the like.
Texas law does not require legally separating before divorcing, but it is a common step for many people who are biding their time during a trial separation while deciding whether or not to proceed with divorce. Many separated couples live in the same home, remain married and co-parent their children. In fact, as long as at least one spouse remains a resident of Texas while filing for divorce, there is no legal requirement for them to stay separate.
We discussed the details and benefits of separation agreements and other alternative dispute resolution options in "Family Law Cases: Alternative Dispute Resolution Options in Texas." The section below expans on the information in the article.
If you and your spouse agree to be legally separated, you can sign a separation agreement that details how all the details of your lives will work while separated, creating clear rules and expectations to help avoid common points of dispute. If children are involved, the agreement can address parenting time, visitation, child support, medical care, child care and schooling issues. This can not only help you avoid costly legal battles over these important aspects of your lives, but also reduce the negative impact a contentious divorce can have on your children.
While you won’t notify the state of Texas about your legal separation, keeping the agreement handy serves as a legal document that comes in useful when making decisions like establishing which parent files tax returns, paying tuition, or deciding where the children spend the holidays. The agreement is intended to protect the rights of both parents, and for that reason it should be drafted by an attorney. Understand that even though this is a legal document it will not be recognized by the state, and thus, its terms will not be enforceable in a Texas court. It will be up to you and your spouse to resolve any disputes based on the terms set forth in the separation agreement.
If you anticipate that your separation might eventually lead to divorce, it’s a good idea to keep this document on file and in effect until your relationship has been resolved by either reconciling or filing for divorce. Many couples include a clause in the separation agreement that states the terms will hold up in a divorce filing, and that the separation agreement will be merged into the divorce decree. While there’s no guarantee this will actually happen, it’s a good way to move out certain issues that both parties have mutually agreed to without having to revisit those contested issues in a divorce case.
It’s important to note that a separation agreement cannot be used for any form of fraud, including spousal abandonment. Be careful not to use your separation agreement to "cut off" a spouse for any reason. If your spouse is leaving you and you wish to deal with the financial aspects of your marital property, debt and other issues now, this may be a good option, but tread lightly and seek the guidance of a qualified Dallas divorce attorney at first.
Steps for Preparing and Finalizing a Separation Agreement
The process of writing a separation agreement in Texas looks somewhat like this:
Identify Terms: With any legal contract, the process begins by identifying what terms and provisions you want to include. Organizing this information prior to using a template will make the writing process easier. In addition, using headings to organize the agreement will help in this process.
Use Legal Templates: Next, using a legal separation agreement template is a good starting point for the document. Having this as a guide will allow you to easily include necessary provisions and terms without accidentally omitting something important from the document. Your attorney will be able to provide you a legal separation agreement template to guide the process.
Consult with Lawyer: Writing a legal separation agreement that meets state requirements requires the assistance of a legal professional. Without an attorney , you may end up using an incorrect format or leaving out important terms. Since the separation agreement is a legally binding order, having an attorney help you write and finalize it is vital.
Finalization: After writing your legal separation agreement with the assistance of an attorney, you must finalize the document by having it approved by the court. Both you and your spouse must sign electronically or using physical signatures.
Enforcing Separation Agreements in Texas
Enforcement of a written agreement is fairly straightforward as the agreement can be enforced through a court of law. With a separation agreement, the parties can elect to have the separation agreement incorporated into a divorce decree, which will allow the contents of the separation agreement to be enforceable as a court order.
A separation agreement may be enforced as provided by its terms, whether incorporated into a decree or not, except that a provision for support of a party in a divorce case may be enforced by all remedies available for enforcement of a court order. In other words, you can’t go back to court to enforce terms of the separation agreement that do not involve support. If you want to have the remaining terms of the separation agreement enforced, the agreement must then be reduced to an order to be enforceable at law.
For a family law attorney, negotiating a separation agreement doesn’t alter the outcome at court. A court will often consider an agreement between the parties regarding child support and medical support, and in most cases the separate property of the spouses. But other than those strictly limited matters, an agreement between the parties regarding property division is not binding on a court.
Hiring an Attorney
Disputes, causes of action, and other issues can arise out of the separation agreement. Possibly, you have a change in either spouse’s annual income after the separation; one spouse is not making monthly payments set out in the separation agreement, perhaps because he or she has become ill or suffered an injury; or your former spouse is refusing to follow through on a wording change to a deed to real estate incident to the divorce. These pitfalls and many others may result in either spouse not abiding by the separation agreement.
In Texas , you must follow the proper procedures to enforce a separation agreement. You must follow the law pertaining to enforcement of a contract and other relevant law to obtain relief. Because the separation agreement itself may be comprehensive, it is best to file a straightforward petition for damages, or alternatively a motion to enforce or contempt. A family law attorney is well versed in the myriad laws so your separation agreement can be enforced.