Separation V. Divorce In Texas


Most States Have Laws About Legal Separation, But Texas Does Not.

Couples in Texas that want to live apart have only one legal remedy – divorce.

If you want to split up and live apart, but not divorce, you can voluntarily decide on a parenting plan for your children. A Suit Affecting the Parent-Child Relationship (SAPCR) can be filed that outlines the rights and responsibilities of each parent. A SAPCR is not a Google-and-do-it-yourself document. You will want an experienced family law attorney to draft it for you.

But that only addresses legal issues with your children. What do you do to protect your property rights? How do you legally divide your finances, your debts, etc.?

It is possible to work out an informal separation agreement.

But, because the state of Texas does not recognize separation as legal, it limits your protections. Your ability to enforce the agreement if your spouse decides to disagree could be limited, too.

Another way to divide community property if you want to separate is with a “Partition and Exchange Agreement.” This is sometimes called a “Post-Nuptial Agreement.”  This allows a couple to transfer interest in marital property to one spouse so that it becomes that spouse’s separate property. This type of agreement must be signed by both parties and recorded in the deeds records of the county where the property is located.

A Post-Nuptial Agreement can stay in effect for a lifetime, and all the while, the parties remain legally married. If at some point you decide to divorce, the property that has already been partitioned stays separate property. The court cannot change it back to community property or take it away from you and give it to your spouse.

A problem that could come up is if you decide to reconcile, but you do not undo the agreement. If you later decide to divorce, or if your spouse dies, the Post-Nuptial Agreement is still in effect. You may be surprised to learn that you do not have rights to certain property that you would, had you dissolved the Post-Nuptial Agreement.

All in all, the best legal way to separate in Texas is to file for divorce.

Soon after filing for divorce, there is a hearing to establish Temporary Orders. At this hearing, you can petition the court to:

  • Establish child custody and visitation arrangements;
  • Establish child support and/or spousal support payments;
  • Force a spouse to move out of the family home;
  • Order either spouse not to sell any valuable assets; and
  • Give possession of the family home or vehicle to one spouse.

Once Temporary Orders are in place, a divorcing couple can “live on” the orders for an indefinite period of time.

If you are thinking about separation or divorce, call us for a consultation at 210-368-9708. Our experienced Attorneys can tell you of your rights under the law and help you protect yourself, your children, and your assets.

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