By Christie Nicholson, J.D. | Legally reviewed by Susan Mills Richmond, Esq. | Last reviewed March 06, 2024
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Relationships can be complex. Sometimes, a couple needs a little breathing room to figure things out. One way to do this is with a legal separation. You and your spouse can live apart while staying legally married.
Many states allow couples to legally separate while deciding whether they want to get a divorce. Couples can draft a separation agreement that addresses property issues, custody, visitation, and support. It does not carry with it the same enforcement as a court order does until the divorce is finalized.
Separation laws involve a legal agreement that is enforceable with a court order. Unfortunately, Texas doesn’t recognize a legal separation.
Here, we’ll discuss the legal separation laws in Texas. We will also explain options available to couples who wish to separate and hash out issues such as alimony, child support, division of community property, and child custody.
Texas doesn’t offer a legal separation, but that doesn’t mean you don’t have legal options. There are other mechanisms to allow for a de facto separation in Texas. For example, you can seek a temporary order or court-ordered marital counseling while your divorce is pending.
Couples can also enter into a formal property settlement agreement while married. This agreement defines their rights and responsibilities relating to property, alimony, child custody, and child support. This kind of agreement may be preferable for couples who want to preserve their legal union while living apart. Perhaps they want to remain eligible for health insurance that is covered through their spouse's employer, or they may not agree with divorce due to their religious beliefs.
A couple that achieves a de facto separation during their divorce case can always withdraw their petition and fall back on their written agreements.
Review the sections below to learn more about the Texas divorce process and ways to achieve some form of marital separation in the state.
There are several statutes, or laws, in Texas dealing with divorce. Some of these include:
Texas courts will grant a divorce without regard to fault if the marriage has become irretrievably broken. However, you can file for a fault-based divorce in Texas. If you choose to do this, your divorce lawyer must assert a ground, or grounds, for the divorce.
There are seven grounds for divorce in Texas. Fault-based grounds include:
No-fault grounds include:
If you file for a fault-based divorce, you must provide support for your claims. For example, if you ask for a divorce due to your spouse’s incarceration, you must submit proof that your spouse was convicted of a felony and served or is serving prison time.
During divorce proceedings, the judge may direct the parties to try counseling. The judge names a person to serve as the marital counselor to determine the likelihood that the parties may reconcile.
Depending on the report of the counselor, the court may continue the divorce proceedings to allow for additional counseling to take place. The courts want to allow the parties to reconcile if possible.
This does not mean the court will deny your divorce. If ordered, it means you may have to participate in counseling before the court issues your divorce decree. It also means your divorce may move more slowly than you want.
If the court determines that the marriage is salvageable it may extend the proceedings up to 60 days. If there are minor children, the counseling must address co-parenting issues.
A judge will rarely accept one party’s defense to a divorce. If you file for a fault-based divorce, your spouse can argue that the grounds aren’t valid. If you file for a no-fault divorce, it will be harder for them to do this.
This is why it may be best to consult a divorce attorney in Texas before you file your petition. They can explain the alternatives to legal separation. They can also explain how the courts may divide your marital assets should you proceed with a divorce.
Texas law doesn't offer permanent legal separation for married couples. This means a separation agreement will be harder to enforce. However, there may be ways to achieve your goals through the court system.
Speak with an experienced family law attorney near you today to learn more and receive the legal advice you need. Visit Findlaw.com’s attorney directory to find a divorce lawyer who can help you achieve the best outcome possible.
Note: State laws are always subject to change through the passage of new legislation, rulings in the higher courts that include federal decisions, ballot initiatives, and other means. While we strive to provide the most current information available, please consult an attorney or conduct your own legal research to verify the state law(s) you are researching.
Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.
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