Legal Separation vs. Divorce: Differences in Texas

Couple arguing

The phrase “legal separation” is so common in American culture that it may shock you to hear that no such thing exists in Texas. That’s right, Texas doesn’t recognize legal separation, however, the state does offer legal remedies to accomplish similar goals.

While we can’t tell you how to get a legal separation in Texas, we can explain the general difference between separation and divorce. We can also help you understand how to protect certain rights and assets if you’re not ready to divorce.

Before we dive into the difference between separation and divorce, what does “separated” mean when it comes to married couples? In states that recognize legal separation, being separated basically means a couple remains legally married while living separate lives. 

A legal separation is a court-ordered agreement that allows couples to define certain boundaries regarding financial restrictions and responsibilities, living arrangements, child custody and child support, among other things. Some couples also arrange for the division of certain assets through a legal separation.

In most cases, a legal separation puts the marriage in a state of limbo, in that the couple remains married and continues living separate lives until they either decide to reconcile or divorce.

There is no state of limbo with divorce, which permanently ends a marriage. 

People decide to separate for many reasons. For example, some married couples want to live separate lives and forgo divorce for religious reasons. Divorce may not be allowed in their religion, or it may be viewed as a sin or violation of certain religious tenets.

Other people choose to delay divorce and separate for a while in hopes of reconciliation or to make the transition to divorce easier for their kids. A legal separation in some states (and legal avenues available in Texas) allows couples to establish guidelines to follow while living apart and establish where parties will live, how finances will be handled and who pays spousal maintenance, as well as child custody, visitation and support.

Living apart and delaying divorce may be financially beneficial

Staying legally married for a longer period of time (or forever) may also afford certain rights and financial benefits. For example, in order to receive spousal support or alimony in Texas, couples typically need to be married for at least 10 years. 

The military also requires spouses of military service members to be married for at least 10 years before receiving benefits through the Uniformed Services Former Spouse Protection Act.

In addition, the 10-year threshold factors into Social Security benefits. If your spouse will receive a larger benefit than you would upon retirement, staying married a minimum of 10 years may entitle you to receive that larger amount.

In addition, some spouses would rather stay separated and delay a divorce in an effort to reap a better financial settlement. This can come into play in Texas, which is a community property state.

In our opinion, the state of Texas reveres the sanctity of marriage but dislikes the lack of finality—that state of limbo—a legal separation allows. Either stay married or get divorced.

While Texas technically does not recognize legal separation, the state does provide a number of legal remedies to accomplish the same goals.

As noted above, many people decide to separate or live separate lives in hopes they will be able to sort things out and reconcile one day. However, during that time, decisions need to be made regarding kids, assets, control and use of property.

If you want to separate from your spouse prior to or instead of divorce, it’s a good idea to ask a family law attorney which legal remedies would work best in your situation. Some of the more common options include:

TEMPORARY ORDERS: When a married couple decides to live separate lives prior to divorce, it’s often helpful to put temporary orders in place, especially when children are involved.

Temporary orders can be used to establish temporary custody, visitation and child support, as well as order the parties to exchange financial information to help determine child support. They may also spell out who will pay for medical costs and health insurance for the child.

Temporary orders for divorce cases in Texas can also establish the temporary use of property, payment of debts and spousal support. The orders may also order one party to pay the other’s interim attorney’s fees and require the parties to exchange information and documents to help determine fair and equitable division of property and debts.

PARTITION AGREEMENT: Texas is a community property state, which means if you live apart but stay married all assets and debts you accumulate during the time of marriage will be considered community property. Those assets and debts will also be subject to division upon divorce, while any separate property either party owned prior to the marriage would remain the property of the individual party.

A partition agreement would allow the couple to assign community property to each other as separate property, so the property wouldn’t be divided upon divorce. Again, it’s best to speak with an attorney to determine whether a partition agreement may make sense for you and what if any risks would be involved.

PROTECTIVE ORDERS: If you are a victim of family violence or afraid your spouse may harm you or your children you can request a protective order to help keep you safe. Protective orders can be used to set forth where your kids will live and who can have access to them. They can also establish spousal and child support, as well as who gets to remain in the marital residence and who has to leave.

SUIT AFFECTING THE PARENT-CHILD RELATIONSHIP (SAPCR): Once you’ve separated in Texas, you don’t need to get a divorce to resolve child custody, visitation and support. In fact, parents who have never married can file SAPCRs when they decide to split up.

In most cases, you can file an SAPCR in Texas as long as your child has lived in the state for at least six months (or since birth) or Texas is considered the child’s home state and he or she hasn’t lived outside of the state for more than six months.

Have questions about separation or divorce in Texas?

Our Fort Worth family lawyers are here to help. While Texas doesn’t recognize legal separation, we can explain the legal options available to you if you want to separate from your spouse prior to or instead of divorce.

If you’d like to speak with a family law attorney in Fort Worth, contact us to schedule a confidential case review with our founder divorce lawyer Justin Sisemore.  You can reach our firm by calling (817) 336-4444 or visit our contact page to schedule online. 

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