Legal Separation in Texas?

I am frequently asked questions about a legal separation in Texas. The answer is simple. Texas has no legal separation. The only mechanism that Texas has for a legal separation is a divorce. Once a divorce is filed, then the court may make temporary orders concerning the parties, their property, support, their persons, their children, etc. Until a divorce is filed, a Texas court cannot enter any type of legal separation agreement between the parties. It is also my understanding that Florida law is very similar to Texas law, in that Florida does not have any type of legal separation.

Many states have legal separations. These are processes whereby you go before a court, and the court makes certain rulings and decisions concerning the parties’ rights, duties, and obligations while the parties are legally separated. There are many advantages to a legal separation including:

  1. It allows couples time apart, away from the conflict of the marriage, and to decide if a divorce is what they truly want.
    It defines the rights of the parties while they’re legally separated, their financial obligations, their custody arrangements, their property arrangements, etc.
  2. It allows for the retention of numerous employee benefits such as medical benefits, disability income benefits, etc.
  3. For certain religions, you may be able to live separately, but retain your marital status for religious beliefs.

Since we have no legal separation in Texas, we frequently work out informal separations. Quite frankly, there are some parties that do need a period apart from each other, time to heal, time to go to counseling, and try to put their marriage back together. In many cases they are able to put their marriage back together. If the couple is really interested in putting their marriage back together, many times they are able to work out an informal legal separation without any intervention by attorneys.

In other cases the parties’ financial affairs are complex, and they frequently seek the assistance of an attorney to try to work out some type of informal legal separation. However, since Texas does not recognize any type of legal separation—formal or informal, there are only a limited number of things that attorneys can do to protect the parties while they are separated.

Probably the most common mechanism is a “partition and exchange agreement” whereby the parties’ property is divided between the parties, the division is set forth in a written partition and exchange agreement, and the written partition and exchange agreement is recorded in the official real property records of the county where the parties live. This effectively separates some or all of the parties’ financial affairs while they remain married.

I have seen couples that have had a partition and exchange agreement that’s remained in effect for five, ten, fifteen years, or a lifetime—all the while they remained legally married. Furthermore, one of the advantages of entering into a partition and exchange agreement is if the parties do subsequently divorce, the property that has been partitioned to a party is that party’s separate property and the divorce court cannot take separate property away from a party.

One of the disadvantages of a partition and exchange agreement is if the parties resume living together as husband and wife, and do not undo the partition and exchange agreement, then upon the subsequent divorce or death of the parties, they’re frequently surprised to learn that the partition and exchange agreement is in full force and effect.

In some respects not having a legal separation process in Texas is probably beneficial to actually keeping marriages together. It forces couples to seriously think about whether they wish to be married or divorced. Without a legal separation process in the State of Texas the parties are not left in the limbo state of being half married and half unmarried—legally separated.