Rules and Laws on Separation Before Filing for Divorce in Texas

Almost every marriage undergoes a separation on the way to divorce. But that separation can take several modes. Separation can simply mean that one spouse moves out of the shared home to live separately.

Another type of separation is the living-apart requirement that is mandatory under some states' family law codes before a divorce will be granted. But the term can also mean a legal separation, a separate marital status that looks like a divorce without legally ending the marriage.

Anyone living in Texas can ignore two out of three of these types of separation after marriage. That's because state laws recognize only one: informal separation.

They say that, in marriage, two people become one. When one walks out the door, the couple separates into two individuals. The first, and most basic, meaning of separation is that a couple ceases to be a couple and the two people live their separate lives again.

This could reflect the unofficial end of a married duo, a prelude to divorce, but the term is also used for the end of an unmarried couple's relationship. They were sharing a house and a life; now they are living in separate places and leading separate lives.

This type of separation is not regulated by any level of government. Family, especially parents, may have something to say about a separation but it is the right of any adult to decide that they prefer to live alone than with someone else. This might be classified as part of the right to life, liberty and the pursuit of happiness.

Because of the right to life, liberty and the pursuit of happiness, no state forbids a couple—married or unmarried—from separating. That is, if one spouse wishes to leave the marital home and live apart, nothing in Texas law prohibits this. On the other hand, simply moving out does not separate either spouse from the impact of the state's community property laws.

Under these laws, whatever is earned during the marriage, regardless of which spouse earns it, belongs equally to both. In some community property states, like California, the minute a married couple separates, each is entitled to 100 percent of their own earnings and zero percent of the other couple's earnings, absent a court ruling to the contrary. This is not the case in Texas.

For some years, most states had laws mandating that a marriage could end in divorce only if the spouse seeking the divorce could prove that the other spouse had engaged in certain "bad" behaviors, like adultery, or they had certain conditions like drug addiction or insanity.

Then, in 1969, California became the first state to allow no-fault divorces. California's statute had previously allowed divorce only with proof of impotence, extreme cruelty, desertion, neglect, habitual intemperance, fraud, adultery or conviction of a felony.

But in 1969, California eliminated all fault divorce grounds and uses only no-fault standards. In such divorces, the party uses "irreconcilable differences" or an "irreparable breakdown of the marriage" as the reason for divorce. The other spouse cannot object to the other party's petition for a no-fault divorce since the objection itself is viewed as an irreconcilable difference.

Today, all 50 states offer no-fault divorce, although some still offer fault divorce. In some states, the law requires that a couple live apart for a specified period of time before permitting an official end to the marriage.

This waiting period to file for divorce while living apart can range from a few weeks to as long as a year, although there are some states that don’t impose a waiting period at all.

Texas does not impose such a waiting period. If a spouse decides to file for no-fault divorce, they can do it the same day. The only waiting period in Texas law regards residency. It requires that one spouse reside in the state for six months and in the county for 90 days before filing for divorce.

Some states offer married couples an alternative to divorce called a legal separation. Legal separation looks a lot like a divorce, but the couple remains married. When a married couple with serious issues thinks about divorce, the first step is often to separate, moving into separate residences.

This can be informal, as described above, but, in some states, it can be a formal legal separation granted to the couple by the court.

What is a legal separation? It is a separate legal status, like marriage and divorce. In fact, the procedure looks like a divorce since the court resolves issues such as child custody, child support, spousal support and division of property.

Generally, it is best if the couple agrees on how to divide assets and debts, as well as child custody, visitation and family support matters. But failing that, the court will hear and determine these issues, just like in a divorce case.

Each party makes their arguments on these issues, as in a divorce, and the court determines the outcome. Once a legal separation is granted, the couple is not legally divorced, but are still technically married. That means that although they live apart and have separate finances, neither is legally free to marry someone else.

If one party decides they want to remarry, the parties must first convert the legal separation to a divorce. Since a legal separation is a marital status granted by the court, court action is required to do this.

There are a variety of reasons for a couple to choose legal separation over divorce. It may be a more acceptable solution for couples whose religion forbids divorce or those who feel that their children may be stigmatized by it.

But another reason involves family health insurance plans. The spouse without their own insurance may be able to stay on the family plan even after a legal separation, while this is not possible after a divorce. Another reason some choose legal separation is the fact that this status preserves inheritance rights between the parties, and preserves marital tax benefits.

It's clear that legal separation is not an easy way to sidestep a divorce. A couple must resolve all the same financial and child-related issues as in a divorce, while, at the end of the road, they remain married. There is no right or wrong reason to separate. Legal separation works well for some, but it will not be the top option for all couples.

Unlike many other states, Texas law does not provide any process for legal separation, which would allow couples to live legally separate lives without actually divorcing.

Delaware, Florida, Georgia, Maryland, Massachusetts, Michigan, Mississippi, Pennsylvania, South Carolina and Virginia do not offer legal separation either, but spouses can separate without court involvement, temporarily or permanently. And some of these states offer alternatives if certain conditions are met.

Some point to the Suit Affecting the Parent-Child Relationship as Texas' form of legal separation. But this is only partly true. If spouses with children want to live separately without filing for divorce, they can file a Suit Affecting the Parent-Child Relationship.

But this action only addresses parental rights, the child custody schedule and child support. It does not address common legal separation issues like property division or alimony payments. Generally this procedure is used by spouses who have recently moved to Texas and haven't lived there long enough to meet the state's six-month residency requirement for filing for divorce.

Texas doesn't really have a legal procedure that takes the place of legal separation. However, a few processes are available to fill in some of the cracks that legal separation resolves. For example, if a couple has decided to file for divorce, they can request that the court issue temporary orders about important issues, both financial and custody issues, that will last until the divorce is final.

Temporary orders are often issued to order one spouse to pay monthly expenses for the other, temporary spousal support, temporary custody of the children and temporary child support payments. These are similar to potential orders in a typical legal separation.

The Texas court will then include the temporary orders in the divorce decree. Alternatively, it can simply allow them to expire when the divorce becomes final.

Can a Texas couple draft a contract between the two of them that sets up the equivalent of a legal separation? There is no law in Texas that prevents spouses from entering into contractual separation agreements or property partition agreements to govern their conduct without getting a divorce.

The problem is that Texas courts treat these agreements as contracts, not as court orders. If one spouse violates the contract, the other can bring a breach of contract action, but this does not provide the same, immediate solution as a contempt of court proceeding available for disobeying a court order.

There is no law in the state of Texas that an individual is required to hire an attorney to handle their marriage, divorce or separation matters. And hiring a family law attorney can be expensive.

While it would be nice to know in advance what it will cost to get a separation agreement or even a divorce in Texas, there is no clear answer. It depends, in part, on whether attorneys are brought in, but also on whether the breakup is amicable or not.

If an individual handles separation issues themselves, there are only limited costs. But with an attorney, it is usually a question of an hourly charge for the number of hours the attorney invests in the matter. These hourly fees can mount up fast.

On the other hand, it can be hard for an individual without legal training to correctly handle their own matters. Texas property laws and divorce laws can be complex and confusing – having an attorney may save heartache in the end.

If nothing else, consult a law firm before filing any court documents. That allows an individual to identify issues that they haven't thought through sufficiently. An attorney who regularly works in this area of the law will know more about the issues, especially important before financial arrangements are made between spouses.