Can Couples Separate in Texas and Have it Legally Recognized?
The State of Texas does not recognize a “legal separation” for married couples. The only legal proceeding for separation is divorce. Once a divorce is filed, a court can make temporary orders regarding the parties, their property, and their children while they live separately. This time period of being separated can be used by the parties to determine whether their relationship is reconcilable or whether their marriage will ultimately end in divorce. However, the time of separation is not unlimited as most courts schedule the case on a dismissal docket.
During this period of separation, finances (the reason for many separations in the first place) can cause problems because property and finances remain part of the couple’s community estate. One possible solution is for spouses desiring a period of separation to separate finances and property by entering into various property agreements; agreeing to transform community property and debts into separate property estates and debts. However, the consequences of doing so should be carefully considered. Note that parties who do not separate can enter into agreements separating property.
If the spouses enter into an agreement transforming their community property into separate estates, they will still have a legally recognized marriage, unless and until they divorce. However, they may not be completely protected from financial decisions made by their spouse. A carefully and meticulously drafted Partition or Exchange Agreement or Marital Property Agreement is critical to protect each party. Additionally, once the nature of property is legally transformed from community property to separate property, the change in property ownership remains in effect if the separation does in fact lead to a divorce. The same is also true if the parties do not get divorced. If the parties reconcile, the property agreement will likely have an unintended effect on property distribution upon the death of one of the spouses. The parties need to anticipate their intent and make sure it is properly memorialized in any agreement.
If the parties have children and want to separate, they do have the option to file a Suit Affecting the Parent-Child Relationship (“SAPCR”) that would result in court orders regarding the issues concerning the children only (conservatorship, possession and access, child support, and health insurance for the children), but the SAPCR would not deal, at all, with property issues. This option can be combined with the agreements discussed above. These issues can become intermingled and complicated quickly, but an experienced family law attorney can help sort them out, explain the differences, and help the client reach a resolution tailored to that client’s individual needs.
By: Dennis M. Saumier