State law determines whether a legal separation is or is not recognized. But that does not mean that states that do not recognize legal separations (like Texas) do not offer alternatives. If you and your spouse have been going through a rough patch for quite a while and are thinking about separating, exploring your options is critical. A divorce can have serious financial and tax implications, even in amicable cases, and those are not necessarily the norm. In addition, marriage is a complicated legal bond, and things get far more complex with children in the mix.
In states that recognize it, legal separation provides an option to live apart and organize a distinct separation both financially and privately between both spouses, without terminating the marriage. Unfortunately, most states that recognize a legal separation also provide the means to transmute the separation agreement into a formal divorce. However, a Texan couple who has gone their separate ways can still answer and finalize certain questions, especially childcare, without signing a divorce.
How Does a Legal Separation Work?
The gist is that a legal separation allows a couple to live apart, organize and agree to a parenting plan, begin the division and distribution of property and assets, set alimony, and address several other issues without voiding the marriage. This has limited yet distinct benefits to some couples, including tax benefits (wishing to continue to file jointly), preserving federal benefits, preserving an employer-sponsored healthcare plan, or simply avoiding divorce and remarriage for religious reasons.
In other cases, couples want to separate for a time rather than accept the finality of divorce. A legal separation would allow them to separate, with the possibility of getting back together after some certain problems have been worked out. However, as mentioned, Texas does not recognize a legal separation. Therefore, a couple that wishes to separate legally has no choice but to start the divorce process.
However, Texas does allow for the drafting of temporary separation agreements once the divorce process has begun, which may later be incorporated into a final divorce judgment. Furthermore, couples can use temporary orders, protective orders, and so-called suits affecting the parent-child relationship (SAPCR) to deal with custody issues after a breakup.
Legal Separation vs. Divorce
The main difference between a divorce and a legal separation is that divorce dissolves the marriage. This frees couples up to remarry and acts as a formal end to the marriage. On the other hand, a legal separation allows couples to organize a physical and legal split in nearly every way that a divorce would, without the dissolution of the marriage contract.
Alternatives to a Legal Separation in Texas
If you are unwilling to start a divorce proceeding, you can still separate to some degree. It should be noted that there is nothing in Texas stopping married couples from living apart. The state does not recognize this type of physical separation, and it means that the state will still treat you as a married couple, but you can live in two separate households and not stir up any immediate trouble.
Some couples split for less-than-friendly reasons. If children are involved, the primary caregiver can take appropriate steps to limit the other parent’s custody, or both separated parents can formulate a parenting plan to organize childcare while living apart. If a parenting plan cannot be agreed upon, the parents can take their problems to a judge and get a temporary order.
Temporary orders act as custody orders or property orders in the absence of or before finalizing a divorce case. When a divorce or custody case is underway, temporary orders play a crucial role in helping settle specific important matters as they play a relevant role in the couple’s or child’s life before the case is over. Even under the most optimistic circumstances, these things can take a long time. Temporary orders can be overwritten by other temporary orders or by the final order of a case. Only a judge can create temporary orders.
Protective orders provide the same basic function as a legal separation but are available specifically to victims of domestic violence and threats of family violence. If you think you need a protective order, call the National Domestic Violence Hotline, and if you are located in Texas, use this toolkit for more information. Be careful about your search history on an unprotected computer or one seen by your abusive spouse.
Protective orders can force an abusive spouse to leave the house, for example, and determine custody. Protective orders can also enforce spousal as well as child support. Unless renewed, or unless stated otherwise in the order, protective orders typically last two years.
SAPCRs in Texas
Another option for establishing custody rights without a divorce is a suit affecting the parent-child relationship (SAPCR). This is, in other words, a custody case that is not part of a divorce case. SAPCRs can also help you gain custody even if you are not the other parent’s spouse. In fact, they are usually used to establish custody in cases where two parents are not married and cannot establish custody through a divorce case.
Creating a Separation Agreement
A temporary separation agreement is basically a legal plan that utilizes the options listed above to set up the next best thing to a legal separation. For example, a separation agreement can be used as a legal contract between two adults to set things like custody, property rights, and financial support in stone before completing a divorce.
Separation agreements are complicated, and even simple clerical errors can lead to a massive headache soon. Therefore, it is in your best interest to draft separation agreements with the help of an experienced family law attorney. While Texas law does not recognize legal separation, you can utilize a combination of the options above to draft a separation agreement and figure things out before opting for a divorce.