Rules on Separation Before Filing for Divorce in Texas

By Sally Brooks - Updated July 19, 2018

If you’re seeking a divorce as a Texas resident, you may be wondering how long you have to be separated before you can file for divorce. Although many states do have a mandatory separation periods, there is no legal separation in Texas. While this means that you can file your divorce petition immediately, it also means that you will still be considered legally married under Texas divorce law until the divorce is finalized. However, Texas courts may approve an interim separation agreement concerning property and debt for the period between the time when the dissolution petition is filed and the divorce decree is granted.

Tip

Texas law does not require a separation period before filing for divorce.

No Waiting Period Before Divorce Filing

Unlike states like Vermont that require married couples to have lived apart for a set period of time before the court will grant a divorce decree, there is no waiting period before filing for a marriage dissolution in Texas. However, a divorce is not official until the court issues the final decree, and under Texas law, there is a minimum 60-day waiting period between the date the petition is filed with the court and when the court can finalized the divorce. Sixty days is the required waiting period, but realistically it may make longer to complete all of the divorce procedures, like service of process, collection of documents and obtaining the spouse's signature.

Implications of No Legal Separation in Texas

Since Texas divorce law does not recognize legal separation, you are considered legally married until you have received the final divorce decree. Texas is a community property state, meaning that with the exception of property owned before the marriage or gifts and inheritances, no matter whose name is on property or debt, it is presumed to be shared by the spouses. So during the minimum 60-day waiting period between divorce filing and finalization, any property or debts that are acquired will be considered joint property of the couple, even if you are no longer living together.

Separation Agreement May Be Approved

Although there are no legal implications to a physical separation before a divorce is finalized, there is a way to preserve community property during this time period. Texas law allows for the married couple to draw up a written agreement that spells out how property and debt is to be divided while the divorce is pending, including who has access to what property, who will make debt payments and what, if any, spousal support will be paid. For it to be binding, the court must approve the agreement.

About the Author

Sally Brooks is a writer living in New York City with her chunky toddler and patient husband. She graduated magna cum laude from the University Cincinnati College of Law and her work has been featured in Jurist and the Temple Political and Civil Rights Law Review.

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