If you want to legal separation in Texas, but aren’t ready for divorce, you’ll need an alternative plan
If you were hoping to file for legal separation in Texas, there’s a bit of bad news: it doesn’t exist in Texas. Texas couples hoping to separate before going through with a divorce will have limited options, so it’s important to understand what legal protections and pathways you’ll have.
There are a variety of reasons that a couple may prefer a separation over divorce, such as:
- taking a breath to attempt marital counseling or other preventative measures before giving up on the marriage
- financial constraints, such as one spouse relying on the other’s employer-sponsored health plan
- religion or other personal ethics/beliefs
Unfortunately, the state of Texas does not recognize any form of separation, either formal or informal. As a result, you will still be viewed by the court as legally married, any assets acquired will be considered community property (belonging to both spouses).
While the divorce process is likely your best course of action, there are several temporary measures that you can take.
While legal separation in Texas may not exist, a separation agreement under Texas law is very functionally similar. This is essentially a contract (signed by both parties and a judge), where each spouse lives separately but are not officially divorced.
Creating a comprehensive separation agreement is a complicated process that should be completed by a lawyer, but it can provide you with financial, property, and custody/visitation rights while circumnavigating a full divorce process until you are ready, should you decide to proceed with the divorce. The specific terms of the separation agreement will establish the rights and duties of each party, and should be both in writing and signed by both parties.
This can be a cost-efficient way of achieving the results of separation until either party decides to proceed with the divorce or stay together.
Partition and Exchange Agreement
A second potential workaround is to draft a partition and exchange agreement. This contract allows the couple to transfer marital property to each spouse to be held separately. There are a lot of avenues regarding this process but this can prevent the designated property from becoming community property, and therefore will not need to be divided if you decide to divorce at a later date.
It’s important to note, however, that if you reconcile, it’s crucial to amend or terminate the original partition agreement. Failure to do so could result in your spouse’s property not transferring to you in the event of their death.
Within the divorce process there are also several options for temporary separation under Texas law, until the divorce process is complete. These Temporary Orders and Temporary Restraining Orders (TROs) can be used as an interim measure to decide about children and property while a divorce is still pending.
Either party can file for temporary orders. A temporary order is only applicable while you are waiting for a judge’s final order, but can provide benefits that include:
- temporary conservatorship
- temporary possession
- temporary child support
- temporary payment of debts (in divorce cases)
- temporary spousal support
- temporary use of property
You will, however, heavily rely on the assistance of your lawyer to obtain these orders.
Unlike standard temporary orders, TROs are for cases in which you are concerned for your safety or the safety of your children because of the chance that the other party will do something harmful.
A protective order, similar to a TRO, can protect you (and/or your children) from a person who you believe could be dangerous to them. In the context of this blog, this could include the spouse you wish to separate from.
A protective order can prevent the other party from contacting you, entering close proximity with you, your children, relatives, or pets, and from certain locations where you are likely to be such as your home, workplace, or your children’s schools.
You may file for a protective order if:
- The person has hurt or threatened you
- You are afraid they will do so again, and
- You or someone close to you had a close relationship with the harmful individual
- Protective orders can also be used for situations of sexual assault or stalking
While it’s important to consult with your lawyer about getting a protective order, it’s also advisable to seek help from resources like the Texas Advocacy Project and local authorities if you fear for your safety.
SAPCR (Custody) Cases
In custody cases, or “conservatorship” as it is officially referred to in Texas, a SAPCR (Suit Affecting the Parent-Child Relationship) can have a significant impact on the outcome of your parenting arrangement. In such cases, a judge can make decisions regarding child visitation, custody, support, and medical details.
If you are not married to your child’s parent, a SAPCR can be an appropriate suit for you to file, if you and the child’s parent have signed an Acknowledgement of Paternity that names the legal parent.
According to Texas Code 152.201 you can file a SAPCR if:
- the child has lived in Texas for 6 months, or since birth if they are an infant
- Texas was the child’s home state and they have not been away for more than 6 months
You must also file the SAPCR in the county where the child lives.
Get The Help of an Experienced Texas Attorney
If the alternative options to a legal separation in Texas are still not adequate or don’t produce your desired results, you’ll need to consider beginning the divorce process.
Regardless of the legal avenue that you choose, however, you will need the guidance of an experienced divorce lawyer to help you navigate the complexities of the separation process in Texas.
Kelly Capps is one of the most experienced and qualified family law attorneys in the state of Texas. Selected to 2022 SuperLawyers list and recognized by both peers and clients as a powerful advocate in complex divorce cases, you can rest assured that your case will be in good hands. Contact Capps Law Firm today to begin a discussion about your unique case. Scroll down this page to complete a contact request.
This article does not create an attorney-client relationship. Its purpose is to educate the public about the topic of family law. This article should not be seen as legal advice. You should consult with an attorney before you rely on this information.