Rules on Separation Before Filing for Divorce in Texas

By Sangeet Duchane
a marriage, Texas

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There was a time when spouses in many legal jurisdictions had to separate for a set time before they could file for a divorce. That is not true today in most places, including Texas. Texas does have some unusual laws regarding separation and divorce that are useful to know about.

Separation Requirements

Texas law does not require spouses to separate before they divorce. Spouses simply have to satisfy Texas residency laws and file for divorce under the applicable statutes.

Legal Separation in Texas

In many states, a married couple can go into court and get an order awarding a legal separation. In that proceeding, the court will enter an order about issues such as property division, spousal support, child custody, visitation and child support. Texas does not recognize legal separations, only divorce, so a Texas court will not issue this kind of order. Spouses who want to separate can sign a separation agreement to cover these issues. That agreement can be legally binding as a contract between the parties, particularly when it comes to property division. Unless they get an actual divorce and court order, the parties would have to go to court to enforce the separation agreement as a contract.

Agreement Incident to Divorce

If the parties decide to divorce in Texas after signing a separation agreement, the separation agreement can eventually serve as the basis for a divorce or annulment order under Texas Family Code Section 7.006. A party can repudiate the agreement before the divorce is final if it has not become binding. The agreement might be binding, for example, if property has already been sold in reliance on the agreement. Agreements about child custody can always be changed in the best interests of the child.

Separation and Common Law Marriage

Separation is relevant to ending one kind of marriage in Texas. Texas recognizes a form of common law marriage called an informal marriage. The parties to this form of marriage can either sign a declaration that they want to be married, or simply agree to be married and live together. If the parties have chosen to just live together and they eventually separate, if no attempt is made to prove the marriage within two years of the separation, Texas law presumes that no informal marriage ever happened. This presumption can be rebutted, but without written evidence, the rebuttal would be difficult.

About the Author

Sangeet Duchane practiced law for several years before becoming a writer. She has since published five nonfiction books and articles in various magazines and online for eHow and, among others. She specializes in articles on law, business, self-help and spirituality.

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