How to File For Legal Separation in Texas

Can You Get A Legal Separation Agreement in Texas?

While all states allow people to get a divorce, not all states have laws regarding legal separation. “Can we get legally separated in Texas?” is a question that clients ask us from time to time. It’s not an unusual question since divorce is a big step, and not all couples know if they want a divorce or are ready for it.

For some people, divorce is against their religious beliefs, or the spouses need to stay married for health insurance reasons. Can you get a legal separation in Texas? The answer is, “No, you cannot get legally separated in Texas because the state does not have legal separation.”

In states such as California, which allows spouses to become legally separated, legal separation is similar to divorce and has many of the legal effects. When spouses in California legally separate, they can address all issues, such as child custody, child support, alimony, and asset and property division, as they would in a traditional divorce.

The key difference between a legal separation and a divorce in California or any other state that allows for legal separation is that separated spouses can date other people, but they cannot remarry. Also, legal separation has virtually the same effects as a divorce.

What Is a Separation Agreement?

Separation agreements are contracts signed by both parties and the judge, memorializing the terms of divorce or separation. In Texas, you don't need a formal separation agreement because the state does not recognize separation. However, you will need a court order from the judge if you and your spouse want custody, visitation, support, or to exchange separate property.

A Texas separation agreement protects both parties and binds each spouse to the other. If either party decides to ignore the arrangement, the other can ask the court for intervention later.

How to File For a Separation Agreement in Texas

The legal separation process is not available in Texas, so couples who wish to end their marriage formally must follow the state's divorce process. While a divorce is pending, couples may live apart and make temporary arrangements.

Property division and spousal support are examples of temporary agreements. Couples have the right to reach an amicable agreement that works for their family, and if the agreement is just and right (fair) to both parties, the judge will approve the order and include it in the final divorce judgment. (V.T.C.A., Family Code §7.001 and §7.006.)

Separating without a divorce can be achieved through other methods of Texas law, such as an informal separation. In Texas, there is no formal or informal separation, so (1) you're still married, and any acquired assets are considered community property, so they belong to both spouses equally, and (2) an informal separation does not carry the same protection as a divorce.

If you and your spouse have children, you can file a "suit affecting the parent-child relationship" so the court can decide on child custody, visitation, and child support without going through a divorce. If you would like to change your parenting plan after the court has finalized it, you must request a modification from the court.

It will merge the two requests if one spouse files a suit affecting the parent-child relationship and the other files for divorce. (V.T.C.A., Family Code § 6.407.)

Options for a Texas Separation Agreement

If you live in Texas and are married, you cannot get a legal separation over a divorce since Texas doesn’t recognize legal separation. However, that doesn’t mean you’re out of options. Many of the same goals of a legal separation can be achieved through the following:

Temporary orders
Protective orders
Suits that affect the parent-child relationship
Separation agreements

The above options do have similar effects as filing for legal separation since they can address child support, alimony, visitation, child custody, and other issues without obtaining a divorce or before a couple finalizes their divorce.

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To explore your legal options, including divorce and Texas separation agreements, contact the Law Firm of Johnson & Gaskill PLLC for a case evaluation.