What is Legal Separation in Texas
In Texas, a legal separation is often confused with divorce. However, a legal separation in Texas happens in a court of law, just as a divorce does, but it’s not the dissolution of the marriage. For many, legal separation fulfills the need for an alternative to divorce while retaining certain government benefits that otherwise may be lost.
Notice the following about legal separation in the state of Texas:
Legal separation agreements are also called spousal agreements. These agreements outline specific terms for the marriage going forward , covering issues such as child support and child custody. A legal separation agreement can be modified later if the parties choose and with the courts’ permission.
In Texas, legal separation is no longer a path to divorce. Over the past few years, the divorce law has changed so much that now the only way to get a divorce is to proceed through the stipulated divorce. Before this recent change, it was possible to proceed through a fault-based divorce. The new Texas law only has a stipulated divorce, which means it is amicable and, therefore, available for settlement.
Options other than Separation in Texas
For couples seeking a legal separation in Texas, there are important considerations. While some states grant couples the ability to legally separate, Texas does not recognize legal separation; however, there are alternatives for couples seeking separation.
Following the end of a marriage, many people wonder whether a legal separation is possible in Texas. In Texas, couples cannot get legally separated; however, they can accomplish many of the same things a legal separation order provides by obtaining a court order known as temporary orders for support, possession [also called access in Texas], conservatorship, and maintenance. A temporary order is frequently issued during an initial stage in a divorce proceeding to govern the legal relationship between the parties and their child and to ensure the children are adequately supported and protected.
When parents are legally separated, they must determine the parent the children will live with most of the time. If custody is disputed, a judge may issue a temporary order providing conservatorship of the children. A temporary order can also set up possession and access agreements for the non-custodial parent. Temporary orders determine who will continue to live in the home, where the parties will live, and how they will share in community debts.
If a spouse stays at home with the children while the other works and pays the bills, once the separating spouse is no longer supporting the family through earned income, they may be unable to make ends meet financially. Parties who legitimately need time to transition from living under one roof to living in separate homes may negotiate for temporary spousal support or maintenance as part of a settlement or seek a spousal maintenance award from a judge. Temporary orders can be entered for spousal support, but because permanent spousal maintenance awards are difficult to get in Texas, temporary support awards are often more readily given.
A legal separation in Texas requires the filing of a divorce complicates emotional and procedural aspects of any divorce case because the process of legally separating and divorce are complicated by the process of divorce itself. Instead of entering into a legal separation, parties can agree to a short-term separation and negotiate all the same issues that would be negotiated in a divorce – property division, child custody, support, and the like – before filing for an uncontested divorce. The parties then let the terms of their agreement govern their actions until the divorce is complete and final.
The Separation Agreement in Texas
A legal separation agreement in Texas is a contract entered into by both spouses that contains contractual terms meant to divide debts and liabilities, divide and award property, provide the status of spousal support after divorce, address the payment of attorney fees, and perhaps even a confidentiality agreement. Separation agreements in Texas offer parties a useful remedy for some issues if they know they will be getting divorced, but have not yet filed suit for divorce and want to start dividing property and liabilities prior to getting divorced. A separation agreement can also be a useful "tryout" or trial run for the parties to see how terms will work between them post-divorce.
However, with regard to the enforceability of the terms in the separation agreement, particularly with regard to alimony, child support, child custody, rights of access to children, attorney fees, and certain other matters, Texas law can be kinder for divorcing spouses than the terms of the agreement. For example, the terms of the separation agreement will not bar a claim for child support when a suit for divorce is filed after entering a separation agreement. The court will look at the child support circumstances at the time of the divorce in determining what the correct amount of child support is, regardless of the terms of a separation agreement.
With some of those terms, however, the separation agreement will be enforceable. It is generally recommended that the parties to a separation agreement who intend to rely on the agreement have the agreement incorporated into a decree of divorce. While a separation agreement is enforceable and a trial or interim order, for some terms the agreement will trump what the court may have ordered in the future in a final decree. These terms include visitation terms, division of community property, responsibility for community debt, and alimony.
Custody and Support Upon Separation
In Texas, separation is essentially one spouse choosing to live apart from the other. Since there is no such thing as a legal separation in Texas, it is up to each couple to determine the terms of their separation. If you and your spouse agree on the terms of your separation, you have one process available to you, and if you do not, you have another.
Separation is different from divorce in many ways. For one thing, spouses who are separated and still married can do anything that spouses who are divorced can do, including getting married again. Separated couples can also file bankruptcy, sue each other, and divide property, and the first spouse to file will usually choose the venue. However, a spouse who is no longer residing in the home may be able to change the locks without the other spouse’s permission, and this may allow them to take property to which they have an interest in both spouses’ lives.
Since both spouses are still legally married and living separately , you will still use the same terms as those used during the divorce process, including possession and access and child support.
When children are involved, whether spouses have a separation agreement does not matter, since parents are still expected to follow the standard Texas family law model for child custody and child support. One of the major differences with a separation agreement is that you still need to petition the court for a temporary custody order. Temporary custody orders are legal documents that inform others that you have authority over the child and that the court does not intend for either parent to move out of state or otherwise interfere with your existing routine with the child. Temporary orders function after the hearing in much the same way that divorce decrees function, but the parties involved are not yet divorced.
Possible Impact on Finances if You Separate in Texas
When it comes to the financial implications of separating in Texas there are a few issues that a couple will need to deal with. The first is distribution of assets and liabilities. When a couple separates, all property that was obtained during the marriage will need to be divided. This includes money in bank accounts, retirement accounts and any personal property obtained during the marriage. If there are debts associated with these items it is also better to divide these out before the divorce is finalized. This is important so the other spouse is not responsible for their partner’s debts. Even if all the debt is in one person’s name, the lender can try to collect from either party. Make sure to get a clear picture of where you are financially before separating.
A second financial area to be concerned with is spousal support. Spousal support could be ordered by the court or agreed upon by the spouses. Texas is one of the strictest states regarding spousal support. In fact, spousal support is only available in certain situations. The two are if the spouse is physically or mentally unable to care for themselves or they’ve been married for ten years or longer and their spouse has been convicted of family violence. If the court does order spousal support it will be for a limited amount of time and vary from case to case. The average spousal support amount is $3,000 each month, and some factors that might affect the amount are the following: A third financial area to keep in mind for couples separating in Texas is to make sure to carefully review legal documents concerning bank accounts, life insurance policies, retirement accounts, and wills. It is necessary to do this so if your husband or wife passes away, you didn’t receive an inheritance ie; life insurance or a trust, that is going to their new girlfriend or boyfriend. You do not want to face a legal challenge down the road when your ex already has everything worked out with their new boyfriend or girlfriend. If you do have a joint bank account that either spouse has to pay legal bills, it’s a good idea to open another bank account prior to separation and have the legal fees go through the new account so as to protect both parties’ finances. It also is a good idea for both parties to have enough cash in an account for their bills for three to six months. There can be a lot of financial implications for separating in Texas however, if a couple is smart and covers all their financial bases, it can make the transition easier. Being honest is key because it is not uncommon for one spouse to hide financial assets from the other however, if the spouse has a good idea of what their partner has, your attorney can help you negotiate so nothing gets hidden and you get what you are entitled to during the divorce.
Legal Guidance When a Couple Separates in Texas
Couples should avoid using incomplete or outdated information when making legal decisions that could impact their families. With regards to the law, "When in doubt, ask a lawyer." Legal advice from a qualified family law attorney is always recommended before martial separations because some issues should be dealt with legally, while others are strictly personal . Family law concerns are particularly nuanced and some may not be known to the average person. People going through a separation in Texas should seek legal advice to ensure they are addressing the following issues, among many others: A family law attorney will assist clients with legal paperwork and help them take the right steps at the right time.