What Texas Couples Need to Know About Legal Separation

Many common ideas about divorce come out of Hollywood and New York celebrity divorces, which have nothing to do with a Texas divorce.  For example, you may have heard of “legal separation” as an alternative to divorce or even a stepping stone to help you decide if divorce is the right next step. However, unlike most states, Texas law does not recognize a “legal separation.” Married couples who decide to informally separate, may find themselves in a very vulnerable situation.  If you are considering physically separating, it’s important to know your options in Texas.

Separate without a legal agreement. 

It is not unusual for couples who are unsure of what they want to do next, to begin living apart without any sort of legally binding agreement in place. This gives both parties time and space to consider what they want with regards to the relationship.  However, the downside of this option is that you are still legally married, with all the shared financial obligations and liabilities. Even when couples go through the step of separating their bank accounts and credit card accounts, many are surprised to learn that under the Texas community property system, simply dividing ownership of accounts does not effectively divide your legal interest in your accounts.  Your spouse will continue to have a community property interest in the money you are earning and saving. Also, you may be on the hook for your spouse’s liabilities. This can leave you vulnerable, because remaining married means you will still have financial liability that’s tied to your spouse.  

A separation can also leave your children vulnerable, as there are no legally binding provisions regarding possession and access to your children, and who is going to be financially responsible for your children.  

Sign a post-marital agreement.

It is possible to legally divide your marital assets and liabilities through a marital property agreement, while still remaining married.  Couples decide to go through this process for a number of reasons, including clarifying who owns which assets as separate property, and who will be responsible for which liabilities.  You may decide that all the money you earn will be your separate property, and there will be no community property. Or, you may decide to go ahead and divide certain assets and liabilities, while allowing for the building of a community property estate through earned income.  You and your spouse can craft a post-marital agreement regarding your financial accounts and property. Like a premarital agreement, a valid marital property agreement entered into during the marriage is binding, and can effectively separate your financial accounts and identify ownership of property, limiting your financial liability. One mistake people make is trying to do a marital property agreement on their own.  Since these property agreements are binding, and change the constitutional rights to property ownership, it is important to make sure you consult with an experienced family law attorney to make sure you understand the consequences of the agreement you are entering into, and also to ensure that the formalities for making a binding agreement are followed.  

While the parties may reach agreements regarding their children, it is important to note that such agreements are not necessarily enforceable.  So while a marital property agreement is valid when it comes to dividing property, it may still leave you vulnerable regarding your children.

File for divorce.

If you know it is time to physically separate from your spouse, you should consider going ahead and filing for divorce, even if you are not certain you ultimately want a divorce. Filing for divorce gives you certain protections.  In many Texas counties, standing orders go into effect immediately, which prohibits either party from cutting off access to financial accounts, hiding the children, or changing the locks on the residence. While in Texas, you are married until you are divorced (which means that community property continues to accrue), and the court can make orders regarding temporary support, payment of bills, use of property, and child custody.  If you are not 100% certain that divorce is the end result, you can also request a “time out” from the divorce proceedings, to allow you and your spouse to attend marriage counseling and work on the relationship. Just because a divorce petition is filed, doesn’t mean you have to go through with the divorce. When both parties agree to reconcile, a non-suit can be filed and the divorce proceeding is closed.  

Initiating a divorce process can be difficult and stressful, but it is possible to move through the legal process in a way that minimizes conflict as much as possible. For many it is worth it to close this chapter of their lives and have enforceable court orders to dictate your new reality.

Next Steps.

If you are in an unsatisfying marriage relationship, the best thing you can do is take steps to gain clarity and confidence as you decide your next steps.  At Hargrave Family Law, we believe gathering information is an important part of that journey. You may benefit from a consultation with an experienced family lawyer, to help you decide whether you should consider a marital property agreement, or whether going ahead and filing for divorce is the best move for you.  Also, we have resources in our community that can help you figure out whether divorce is right for you. There is a process called “discernment counseling” that helps many couples explore together whether they are committed to working through their marital issues, or whether it is time to end their relationship with dignity.  You can learn more about discernment counseling through www.TheMarriagePlace.com .  

We can help.

If you are experiencing marital discord and aren’t sure which of these options is right for you,  the Hargrave Family Law team is here to help. We provide experienced guidance in this and other family law matters. If you are interested in learning more about our firm and how we can help you, please give us a call at (214) 420-0100. We can partner with you and to begin guiding you into the next chapter of your life.

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