If your marriage has reached a point of disrepair and you've begun discussing next steps with your spouse, you've probably talked about divorce or separation. Divorce is a method couples use to terminate their marriage. Either spouse may begin the process by filing a formal request (petition) with the court.
During the process, couples usually reach an agreement on custody and visitation, child support, property division, and spousal support before meeting with the judge. If you can't agree, the judge can help resolve any lingering issues. At the end of the divorce process, the court formally ends your marriage, and both spouses can move forward with life as an single people.
Legal separation is like divorce in that you or the judge will decide the same divorce-related issues, but in the end, you and your spouse are still legally married, despite physically living apart. Any spouse that wishes to remarry later must first ask the court to convert the separation into a formal divorce.
There's no real answer for why some couples decide to separate rather than to divorce. For some, a separation gives the relationship a chance to breathe and allows the couple time to participate in marital counseling, spend time apart, and determine the best plan for the family. If a couple isn't confident that divorce is the right choice, separation may be the most effective way to test the waters of divorce.
Other reasons couples choose separation instead of divorce are:
Legal Separation isn't available in Texas, so couples who would like to end their marriage formally must follow the state's divorce process. However, the court allows couples to live apart and make temporary arrangements while a divorce is pending.
Temporary agreements may cover a variety of issues, such as property division and spousal support. The court gives couples the power to reach an amicable settlement that works for the family, and if the agreement is just and right (fair) to each party, the judge will approve the order and incorporate it into the final judgment of divorce. (V.T.C.A., Family Code §7.001 and §7.006.)
If you'd like to separate without divorce, you can create an informal separation by using other methods of Texas law. Remember, Texas doesn't recognize any form of separation, formal or informal, so (1) you're still married, and the court views any acquired assets as community property, meaning it belongs to both spouses equally, and (2) an informal agreement doesn't offer the same protection as divorce.
For couples with children, you can file a special request called a "suit affecting the parent-child relationship," which allows the court to determine child custody, visitation, and child support without a pending divorce. Once the court finalizes your parenting plan, if you'd like to change the arrangement, you will need to ask the court for a modification.
If one spouse files a suit affecting the parent-child relationship and the other files for divorce, the court will merge the two requests into the divorce proceedings. (V.T.C.A., Family Code § 6.407.)
Another way to get around Texas' law against separation is to draft a partition and exchange agreement. In this contract, the couple transfers marital property to each spouse so that it becomes that spouse's separate property. If you decide to divorce later, the court won't divide the property listed in this agreement because it's not community property. One consideration you must take is that if you and your spouse reconcile, you must amend or terminate the agreement for it to be void. For example, if you reconcile and one spouse later dies, but you didn't terminate the original partition agreement, the property that belongs to your spouse in the agreement won't automatically come to you through estate rules. In fact, if the property is separate, the court will likely transfer the assets to your spouse's heirs.
For many couples, discussing legal contracts or divorce is painful and emotional. If you're not ready to ask the court for help, you can participate in a trial separation, which is where you live apart from your spouse for a prescribed period. Many couples use a trial separation to reassess the state of their marriage and to determine what steps they should take next.
In most cases, you and your spouse can make an oral agreement for the terms of the trial, like financial support and visitation with the children. The court doesn't monitor trial separations, so if you don't reconcile, you'll need to decide whether you should file for divorce or negotiate a contract for a parenting plan and property division.
A separation agreement is a contract signed by both parties and the judge, and it's used by the couple to memorialize the terms of divorce or separation. Because Texas doesn't recognize separation, you don't need a formal agreement. However, if you and your spouse would like a court order for custody, visitation, support, or to exchange separate property, it'll need to be in writing and signed by the judge.
Separation agreements protect both parties and keep each spouse accountable to the other. If either party decides to ignore the arrangement, the other can ask the court for intervention later.
Although you can represent yourself in any legal proceeding, it's always best to consult an experienced family law attorney in your area before you file.