What is Legal Separation in Texas?
In Texas, legal separation is understood to mean a couple who are no longer living as husband and wife, but also are not yet divorced. There are many reasons a couple may choose to separate rather than divorce. For example, a spouse may not want to pay for two homes, or one spouse may not be ready to talk to a judge about their money or child custody.
However, if you are legally speaking about "legal separation in Texas", what you really mean is the Court’s granting of temporary orders to a husband and wife during the pendency of the divorce. You are not, truly speaking about a legally recognized "separation" in Texas. There is no such thing as legal separation in Texas.
Legal separation and divorce are similar in that both may allow couples to live apart, and both require some legal action. A legal separation differs in that the couple remains married after the case is concluded , as there are no binding terms in regard to property division and spousal support.
Whether or not you should pursue legal separation in Texas is a decision specific to your circumstances. There are only a handful of states that actually allow for separation without divorce, and even these so-called "legal separations" do not allow you to stay married if you are separated; the spouse seeking separation must prove specific grounds for separation under that state’s laws. Some states allow a "simple separation" between spouses, however, the term "simple separation" is more of a colloquial term with mostly practical outcomes, such as your spouse moving out from the home, and does not provide for any enforceable judicial orders.
Texas, like many other states, does not recognize separation as a legal state. There are no written orders regarding the divorce proceedings, including custody and property issues. Because of these reasons, legal separation remains a less defined and less enforceable option than opting for a divorce.
Pros and Cons of Legal Separation in Texas
For a variety of reasons, people contemplating divorce may consider or even prefer legal separation. For one thing, separation resolves many practical problems without dissolving the marriage. People who have been together for many years or have dependent children may find it unpalatable to make the break and move on. Living apart may give them valuable time to make new arrangements in their lives socially and financially.
In certain cases, legally separating prior to a divorce can help avoid future disagreements over temporary issues such as spousal support, asset division, custody and child support terms. Parents of young children who are not ready to decide how to co-parent after their marriage ends can be especially reluctant to set up a co-parenting arrangement that they may not want or that may change over the course of the separation. That is, mom and dad do not want to take turns living with the statement week after week if they are going to permanently get back together, and they do not want to set up a permanent schedule if it is going to change once the dust settles.
Sometimes, parties use legal separation to gather information for and to determine what their final divorce situation will look like. In Texas, people cannot file for legal separation and then follow with a divorce if they know at the outset that they want to divorce, because Texas does not recognize legal separation.
The judge will usually issue an order that includes terms for custody of the children and child support, but these terms may be temporary. For example, if the parties are living together again shortly after the separation, the child support order can be adjusted. The order could set out temporary spousal support for the lower-earning spouse, give property to the parties to use and explain how debts will be paid during the separation. Once a divorce proceeding takes place, the judge would consider these conditions in the settlement, but the terms in the legal separation order usually disappear.
How to Get Legally Separated in Texas
In order to file for a legal separation in Texas, you and your spouse must file a "Suit for Dissolution of Marriage." Essentially, it is the same petition that is filed for a divorce proceeding. Before filing this suit, you must have been separated from your spouse for three years (in accordance with Texas Family Code Section 6.0051). When filing for a legal separation, you will be required to include a "separation agreement," which details arrangements regarding child support, custody, and property division. When the judge signs the separation agreement, this agreement becomes a legally-binding document.
Technically, there are two types of separation agreements: (1) contractual and (2) temporary. Nonetheless, the separation agreement is typically considered a contract. If you and your spouse agree to the terms of the separation agreement, volunteers to oversee the marriage dissolution proceedings, and signs the agreement, the agreement then becomes a court order and must be obeyed.
In many cases, temporary orders which include provisions for medical insurance, child support, exclusive use and possession of the parties’ home, attorney’s fees, and other financial obligations and arrangements are implemented immediately when a legal separation is sought.
However, these temporary orders may be challenged in a contested hearing. In this case, both spouses appear, and the issue of whether the separation agreement should become part of the court’s orders is debated, and once both parties submit their arguments, the judge makes his or her decision.
Rights and Responsibilities During Legal Separation
During a legal separation, both spouses’ rights and obligations are primarily governed by the terms of the separation agreement. However, there are default rules provided by Texas law that control in the absence of a contrary provision in the separation agreement.
Most separation agreements provide that community property will be awarded to one spouse and the other spouse will receive consideration in the form of the same value or an undivided half interest in the property awarded to the other spouse. Under Texas law, a separation agreement may alter the spouses’ rights with respect to their community property much as a marital partition or post-nuptial agreement accomplished that same purpose before the Texas Family Code was amended in 1987. Therefore, other than the restrictions noted below, the separation agreement controls the spouses’ respective rights in their community property, regardless of the date that the spouses signed the separation agreement or divorce petition.
One major limitation on the spouses’ ability to agree to a division of the community estate relates to child support. No agreement entered into before the children’s 18th birthday may limit the right of a child to receive child support upon the application of any party interested in the welfare of the child. Under this provision, the obligation to pay child support could continue beyond the 18th birthday, perhaps until the child completed college.
In the absence of a separation agreement that provides otherwise, State Bar Forms Mandatory Disclosure governs the disclosure obligations of the parties in a legal separation proceeding. If a party fails to deliver a response complying with State Bar Form 14, the court may on motion compel compliance with the request for disclosure, continue the trial date or the hearing, if any; or impose sanctions. A response or objection is not required by the legal separation proceeding if it has already been provided in the divorce suit.
There are no special rules with respect to the duty of the spouses to support one another during a legal separation proceeding. Under the Texas Family Code, spouses may have the right to recover maintenance if a spouse:
While legal separation has no direct tax implications, any relief that is given as part of the separation agreement should be considered carefully for all of the relevant tax consequences that may apply. For example, spousal support is taxable income for the recipient spouse, but if paid over a long enough period of time, the payments can be structured to reduce total tax liability. Similarly, the division of any retirement benefits should be properly structured, or it may have a tax consequence on the employee spouse’s receipt of the retirement benefits.
Impact of Legal Separation on Taxes and Finances
The decision to legally separate from your spouse is a complex one that involves the management of a family’s abundant finances. Among the many considerations surrounding a legal separation, you must also take tax considerations into account.
Filing Jointly
Couples who legally separate but do not get legally divorced have the option to file a joint tax return for the year prior to their separation date. The Internal Revenue Service (IRS) allows you to continue filing joint tax returns until the year in which you become permanently separated. You must make sure not to file your taxes jointly if you are legally separated prior to the filing deadline. If you do, the IRS will most likely assume you and your spouse are still living together.
For couples who are separated but have not divorced, this could cause complications. If the IRS audits you, it could conclude that you were living together, which could have added legal and financial consequences.
Any tax refund you receive that is due in part to a separation agreement could be distributed to both spouses, regardless of when it was filed. Although one spouse may have filed the return, the refund is technically considered "community" income, so the spouse who did not file it may receive part of that refund.
Separate Returns
When you decide to file your tax returns separately, there are various outcomes for your and your spouse’s taxes.
– Increased Tax Breaks: One of the benefits of filing separately from your spouse is that you can qualify for certain tax breaks that are not available for those filing jointly. For example, you may qualify for the child credit, child care credit and earned income tax credit. If one spouse earns most of the income, the spouse with less income would pay a significantly lower tax rate if filing separately.
– Tax Drawbacks: When you file separate returns , you could lose certain tax breaks that are only available for joint filers. Some of these include the mortgage interest deduction, education credits, job credits, and higher rates for medical deductions.
Property and Debt Division
Once you and your spouse legally separate, the division of property and debt becomes a top priority. Texas is a community property state, so any property or assets acquired throughout the marriage belongs to both spouses. Divorce lawyers in Texas can help ensure you are awarded the amounts and assets you deserve. Couples going through an uncontested divorce are sometimes tempted to handle the distribution of assets on their own, but this can lead to complications later on.
When you and your spouse enter a legal separation, you have the opportunity to divide your property and debts immediately. If you choose to do so, you should obtain an attorney to help you navigate the legal formalities. This process is much like that of a divorce, except that a legal separation does not dissolve the marriage. If you and your spouse divide the property while legally separated, you cannot go back and claim a larger share should you finalize the divorce at a later date. Property acquired after the date of the separation is considered separate property, unless you indicate it is to be counted as community property. In that case, the property reverts to being community property immediately before the final divorce decree.
When you and your spouse divorce, the property division will be final and cannot be changed after the fact. The property division that was made during a legal separation can always be changed, up until the point of becoming finalized in a divorce. Once the divorce decree is signed, the property division cannot be altered or challenged.
Legal Separation in Texas vs. Divorce
"Legal separation is relatively uncommon in Texas and most people who think they are legally separated are not." – Michael Carter – (Separation Not Recognition Of Status (Sec. 6.602)).
"In divorce, the couple goes their separate ways, either to remain that way or to get back together at a later date (if that is even an option under their state’s laws)." – Ken Lewis – Legal Separation: A Guide for Your Family
When asking questions about legal separation and divorce, many want a legal separation but don’t want an actual divorce; many want to be separated but paid all the benefits of having a divorce; many want to remain married for tax purposes, child support purposes and insurance purposes but live apart from their spouse. This is why it is very important to understand what legal separation means in Texas.
In Texas, only one party can file for divorce and that party must show grounds for the divorce. However, in cases where one party does not want to grant the divorce, there is the option of filing a lawsuit for temporary orders that would legally separate the parties until those temporary orders are dissolved as a result of settlement or final hearing. The temporary orders can address child support, possession of children, child custody, property division, spousal support, among other issues. When the temporary orders are in effect, the parties are essentially separated.
When to Seek Legal Separation in Texas
The path to divorce can be long and challenging. You may need to make difficult decisions and share in the anger felt by your spouse. You also may not want to go through a divorce just yet or may not feel ready to take the legal steps to end your marriage. Understanding the options available to you as you move toward resolution can make coping with the process easier. In some cases, you may find a solution in legal separation.
When thinking about this process, however, it’s important to consider things carefully. Legal separation is an option to consider if any of the following scenarios apply to you or your relationship: When facing these types of scenarios, some couples will choose to end their relationships by pursuing divorce. Others, however, may see legal separation as a good initial step. The benefits of pursuing legal separation generally include: Although legal separation may be beneficial in certain scenarios, it’s not always the best option for a marriage. In fact, in some cases , pursuing trial separation rather than legal separation may be the best choice for your situation. This represents an agreement between spouses to live separately for a period of time while remaining legally married to each other. This allows you to experience an objective distance from your spouse, including the opportunity to work with a therapist to assess your relationship and determine whether to pursue divorce or another resolution.
Trial separation may be a good first step if you believe that your marriage can be saved but require some space in order to identify the issues at hand. It can also be a valuable way to seek the guidance of a therapist, decide whether divorce is necessary and determine which type of divorce might best accommodate your needs.
In some cases, a Texas attorney can assist you in negotiating a legal separation arrangement with your spouse. You may choose to enter into a separation agreement by mutual decision or by seeking an order of possession and access from a divorce court.