Almost all states have laws concerning legal separation, but unfortunately legal separation in Texas is not specifically addressed in the legislative statutes. And this can present a dilemma for Texas couples that want to live apart without getting a divorce.
As far as custody, visitation, and support issues go, you and your husband can decide on a voluntary parenting plan. Or you can get court orders that define the rights and responsibilities of each parent, which are called Suits Affecting the Parent - Child Relationship (SAPCR orders). To get a SAPCR order, you should retain an experienced family lawyer to handle the matter or contact the Attorney General's Office for assistance in creating your order.
But how can you protect your property rights while you and your spouse are separated? The following discussion outlines one method of handling martial property issues during the period of separation.
By John K. Grubb, Attorney
I am frequently asked questions about a legal separation in Texas. The answer is simple. Texas has no legal separation. The only mechanism that Texas has for a legal separation is a divorce. Once a divorce is filed, then the court may make temporary orders concerning the parties, their property, support, their persons, their children, etc.
Until a divorce is filed, a Texas court cannot enter any type of legal separation agreement between the parties. It is also my understanding that Florida law is very similar to Texas law, in that Florida does not have any type of legal separation.
Many states have legal separations. These are processes whereby you go before a court, and the court makes certain rulings and decisions concerning the parties' rights, duties, and obligations while the parties are legally separated. There are many advantages to a legal separation including:
Since we have no legal separation in Texas, we frequently work out informal separations. Quite frankly, there are some parties that do need a period apart from each other, time to heal, time to go to counseling, and try to put their marriage back together. In many cases they are able to put their marriage back together. If the couple is really interested in reconciling, many times they are able to work out an informal legal separation without any intervention by attorneys.
In other cases the parties' financial affairs are complex, and they frequently seek the assistance of an attorney to try to work out some type of informal legal separation. However, since Texas does not recognize any type of legal separation --- formal or informal, there are only a limited number of things that attorneys can do to protect the parties while they are separated.
One of the more common methods of dividing community property when a couple separates is through a "partition and exchange agreement". Such an agreement allows the transfer of martial property or property interest to a spouse so that it becomes that spouse's separate property. For the agreement to be valid, it must be in writing and signed by both spouses. It is then recorded in the deed records in the county where the spouses reside and the county where the property is located.
I have seen couples that have had a partition and exchange agreement that's remained in effect for five, ten, fifteen years, or a lifetime --- all the while they remained legally married. Furthermore, one of the advantages of entering into a partition and exchange agreement is if the parties do subsequently divorce, the property that has been partitioned to a party is that party's separate property and the divorce court cannot take separate property away from a party.
One of the disadvantages of a partition and exchange agreement is if the parties resume living together as husband and wife, and do not undo the partition and exchange agreement, then upon the subsequent divorce or death of the parties, they're frequently surprised to learn that the partition and exchange agreement is in full force and effect.
In some respects not having the ability to get a legal separation in Texas is probably beneficial to actually keeping marriages together. It forces couples to seriously think about whether they wish to be married or divorced. Without a legal separation process in the State of Texas the parties are not left in the limbo state of being half married and half unmarried - legally separated.
Article by Attorney John K. Grubb, a seasoned attorney who handled divorce and family law matters in the Houston area for over 40 years. Mr. Grubb is now retired.
Even though you can't get a legal separation in Texas, the above method of dividing the martial property while you are separated does offer an option to protect your rights while you are living apart from your spouse. It's important to realize that any arrangements made during your separation in Texas can set precedence if you get a divorce, so you really need to consider the implications before you proceed.
For more tips and information on the various issues of separation and how you can protect yourself, check out the following articles: