What Is Legal Separation in Texas?

When your marriage hits a rough patch, you might wonder about your options for living apart from your spouse. Many people have heard about legal separation and think it could work for their situation. However, it is crucial to recognize that Texas handles marriage and separation differently than many other states.

What Is Legal Separation?

Legal separation is a court process that lets married couples live apart while they remain legally married. In states that allow legal separation, couples go to court and ask a judge to create orders about issues like child custody, property division, and financial support. At the end of the process, the couple has a legal document that spells out their rights and responsibilities while living separately.

Legal Separation vs. Divorce in Texas: Key Differences

The key difference between legal separation and divorce is that legally separated couples remain married. They cannot remarry unless they later convert the legal separation into a divorce. 

Texas does not recognize legal separation as a formal legal status or court action. This makes Texas different from states like California or New York, where courts regularly handle legal separation cases. If you want to end your marriage in Texas, you must pursue a divorce.

During a divorce in Texas, the court permanently ends your marriage. You and your spouse will work out custody, support, and property division arrangements. Once the judge signs the final decree, you are no longer married and can move forward as single individuals.

Alternatives to Legal Separation Available in Texas

The following alternatives can help you establish clear boundaries and responsibilities while you figure out the future of your marriage.

• Temporary orders: These court orders address immediate needs while your divorce case moves through the system. Temporary orders can decide who stays in the family home, who has the children during the divorce process, and who pays which bills. The court can also order temporary child support and spousal support.
• Protective orders: If you are a victim of family violence, a protective order can help keep you safe while establishing further arrangements. These orders can determine where children live and who can see them. They can also decide who stays in the home and who must leave. Protective orders typically last for two years and can include provisions for child support and spousal support.
• Suits affecting the parent-child relationship (SAPCR): This legal option lets you establish custody, visitation, and child support without filing for divorce. Many unmarried parents use SAPCRs to gain conservatorship of their children, but married parents can also file them. If one spouse later files for divorce after a SAPCR is in place, the court will combine the two cases. 
• Separation agreements: A separation agreement is a written contract between spouses who no longer live together but remain married. The agreement spells out each person’s rights and duties while living apart. It can cover visitation schedules, financial support, and property rights. However, because Texas does not recognize legal separation, these agreements do not have the same legal force as court orders. You should work with an attorney to create a valid separation agreement, as small mistakes can lead to serious problems later.
• Partition and exchange agreements: This type of contract lets you and your spouse transfer marital property so that certain assets become one spouse’s separate property. If you divorce later, the court will not divide the property listed in this agreement because it is no longer community property. You must remember to amend or end this agreement if you reconcile with your spouse.

Common Reasons Couples Choose Separation Over Divorce

Even though formal legal separation is not available in Texas, some couples still choose to live apart without divorcing. Understanding why people make this choice can help you think about what works best for your situation.

• A chance for the relationship to breathe: Time apart can give both spouses space to think clearly about what they want.
• Religious or moral beliefs: For some couples, staying married while living separately honors their values.
• Financial considerations: Separation instead of divorce may help you keep certain federal benefits. Some people want to maintain employer-sponsored health coverage for a spouse, though you must check whether separation will end these benefits.
• The emotional toll of divorce: Not everyone who wants to live apart from their spouse feels ready to end their marriage permanently. Living separately without divorcing gives these couples time to adjust to their new circumstances.

Potential Pitfalls

Living apart while remaining married can create complications. You need to understand the risks before deciding to separate without divorcing.

When you stay married, Texas law treats any assets you acquire as community property. As a result, the property belongs to both spouses equally, regardless of who bought it or whose name appears on the title. If you eventually divorce, the court will divide all community property acquired during your marriage, including items you got while living apart.

Moreover, informal agreements between spouses do not offer the same protection as court orders. If your spouse decides to ignore your verbal agreement about child custody or financial support, you may have limited options for enforcement. Without a court order, you cannot easily hold your spouse accountable.

When to Consult with a Family Law Attorney

While you might be able to handle some matters independently, there are some situations that require professional legal guidance. 

For instance, you should consult an attorney if you and your spouse cannot agree on custody, property division, or support arrangements. An attorney can explain your rights and what outcomes you can realistically expect in court. They can also help you create agreements that protect your interests.

Working with an attorney is also essential if you plan to draft a separation agreement or partition and exchange agreement. These contracts must follow specific legal requirements to be valid. A lawyer will ensure the agreement includes all necessary provisions and avoids mistakes that could cause problems later.

Finally, situations involving family violence require immediate legal attention. An attorney can help you obtain a protective order and make arrangements that keep you and your children safe.

Contact Balekian Hayes, PLLC, Today

If you have questions about separation, divorce, or other family law matters in Texas, Balekian Hayes, PLLC, can help. Whether you need help with temporary orders, protective orders, custody arrangements, or divorce proceedings, our team has the knowledge and skills to guide you through the process. We limit the number of cases we handle to ensure every client receives personalized attention and dedicated support. Contact our office today for a confidential consultation.