Why Would You Get A Legal Separation Instead Of Divorce?

Why Would You Get A Legal Separation Instead Of Divorce?

Why Would You Get A Legal Separation Instead Of Divorce?

By Frank Vendt |

You may have heard that one in three marriages fail. This may not be an accurate claim. But, according to the American Psychological Association(APA), 50% of marriages do end in divorce.

But why would you get a legal separation instead of a divorce?

Read on to learn about if you can file for legal separation in Texas, the risks of separation, when to hire an attorney and more.


  • What are the different types of separation?
  • What is legal separation?
  • What is a separation agreement?
  • How much does it cost in Texas?
  • What is the difference between legal separation and divorce?
  • Does Texas recognize legal separation?
  • What are the risks of separation in Texas?
  • When should I consider divorce in Texas?
  • When should I hire an attorney?
  • Frequently asked Questions
  • Is Texas a community property state?
  • Can I separate from my spouse in Texas?
  • Is separation agreement legal in Texas?
  • Should I buy a house while being separated in Texas?
  • How long does legal separation take in Texas?

What are the different types of separation?

When you want to live apart from your spouse due to irreconcilable issues, there are multiple options to live separately without seeking a divorce.

These include:

  • Trial Separation
  • Permanent Separation
  • Legal Separation

Trial Separation

Your marriage may run into troubled waters and you may want to take a break and live apart for a while.

Trial separation is an informal agreement agreed to by both the spouses to live apart. It is informal as there are no legal documents, attorneys or orders involved.

Couples opt for trial separation when they are weary of the marital discords and want to sort out the issues by taking some time and space away from each other.

The agreed terms are not binding on either couple and the marital status remains unchanged.

Again, since this is not legally recognized, all property/debt acquired during the separation is still considered community property. All marital laws will continue to count which means that a spouse can charge you later with adultery if you start a new relationship.

Permanent Separation

When the couple runs into irreconcilable issues or wants to take their trial separation further, they can agree to permanently separate.

Permanent separation is only recognized in certain states. These states give them the status of being “legally separated”.

But in Texas, permanent separation is also not considered and the couple retain their status as a married couple.

Legal Separation 

Approach a legal attorney to draft up a separation agreement. Once signed and filed, it is a legally binding document which can enforce the agreed terms like custody rights, visitation rights, property rights etc.

Of these, only legal separation can change your marital status. But in Texas, legal separation is also not recognized.

So, even if separated, you are a married couple until the divorce is finalized.

What is legal separation?

A legal separation is a formal separation of the couple marked by court mandated terms and conditions that dictate the terms of separation.

The couple begin to live separately due to unresolvable differences but are legally bound to follow the terms of the separation. These terms could be about child support, visitation rights or any other concerning issues.

But the legal separation ends all financial obligations and changes the marital status to legally separated.

The couple then can go on to file for divorce and quote the terms of the legal separation for negotiating the divorce settlement.

In Texas, however, legal separation is not recognized. So, the couple will retain their marital status despite living apart. Texas being a community property state also mandates that all property acquired during marriage be jointly owned by both the spouses.

These legal conditions can lead to a quagmire if you don’t sign property partition agreements.

Some couples who experience marital discord due to irreconcilable differences, choose to live apart. They can still enjoy benefits like health insurance as the state considers them to be a couple.

What is a separation agreement?

Separation agreement is a mutually agreed document that lists the obligations and rights of the spouses during the separation. This is a legally binding document and the terms are enforceable by the court that issued the order.

This agreement lists down the terms of sharing of spousal support, child support, assets, debts, health insurance benefits, 401(k), pensions, retirement plans, taxes etc.

How much does it cost in Texas?

The court fees for filing a separation agreement can cost $300. If the terms are mutually agreed before filing, the time taken will last between a month or two.

different types of legal separation

What is the difference between legal separation and divorce?

A legal separation is when the couple begin to live apart after a court order. They have to adhere to the terms and conditions that dictated in the order of separation.

In a state like Texas where legal separation is not recognized, the couple can still share benefits like health insurance and continue to enjoy the benefits of the community property.

Since all marital laws continue to function, if a spouse enters into a relationship with another person during separation, the law construes it as adultery. You are also not allowed to remarry as your marital status is unchanged.

Divorce on the other hand, is the actual end to the marriage. The finality of the process makes divorce irreversible and puts an end to all shared benefits like insurance, 401(k)s, pension benefits etc.

The divorce proceedings also have to be mandatory accompanied by charting out terms regarding child support, custody, spousal support, property division etc.

Divorce protects you from financial obligations due to the inherent nature of its finality.

Though expensive, it also gives you greater protection than formal and informal separation agreements.

When should I consider divorce in Texas?

You can consider divorce as an option in Texas when:

  • You need financial independence from your spouse as separation does not mean the end of community property. You need to file separate petitions each time to change the status to separate property.
  • You want to remarry as separation does not change your marital status.
  • You want to end all connection with your estranged spouse due to irreconcilable differences.
  • You want to revoke their right to make financial or medical decisions on your behalf.
  • You don’t see any financial benefits like sharing the insurance cover, paying off mortgage etc.

Does Texas recognize legal separation?

No. The Texas Law does not recognize legal separation. Even if they live separately, they enjoy the rights of a married couple.

What are the risks of separation in Texas?

In a state like Texas which does not recognize legal separation, if you opt for separation, your marital status does not change. You are still considered a couple as per law.

This means you are at risk of having financial obligations like debt, being accused of adultery, presumed parenthood issues and more.

The major risks of separation are:

  • Unable to remarry until you file for divorce and it is finalized.
  • Presumed Parenthood when a child is born during separation leaving you open to the risk of paying child support
  • All assets acquired are considered as Community Property
  • Dangerous Financial obligations like when one spouse accumulates debt or mortgages even on their separate property

When should I hire an attorney? 

If the separation or divorce agreement is uncontested, you can file them yourself, though representing yourself is not always advisable.

In case your spouse refuses to agree to the terms or violates the terms of the agreement, an expert attorney will be able to seek compensation or get your rightful share. In case your spouse violates any terms agreed in the separation agreement regarding child support, spouse maintenance etc. a lawyer will help you bring it to the court’s notice as these are legally enforceable.

Since Texas is a community property state, you need the advice of an expert attorney to protect your finances in the event of a separation or divorce.

If you are looking for expert divorce attorneys in Richmond, Texas, contact Vendt Law Firm P.L.L.C.

what is legal separation

Frequently Asked Questions

Is Texas a community property state?

Yes. Texas is one of the nine community property states in the country. This means that any asset/debt acquired during the marriage is jointly owned by both the spouses.

This includes:

  • money earned by either spouse
  • acquired property by either spouse
  • debts acquired by either of the spouses
  • retirement funds
  • savings account
  • stock dividends and capital gains on property investments of either spouse
  • business ownership and profits

Community property excludes any property acquired before the marriage i.e. separate property. Gifts and inheritance are also considered as separate property so the spouse can not make a claim on it.

If separate property commingled with community property, then it can be considered as community property. For.e.g. When a partner uses their separate property like savings account to buy a car, the spouse owns half the interest on the car.

In some states like California, all community property gets split as 50/50 but in Texas the community property does not always mean 50/50. Law states that the division should be“just and right”.

Is separation agreement legal in Texas?

The Texas law does not recognize legal separation. According to the law, from the date of marriage till the date of separation, all property/debt acquired during the marriage is considered as community property.

This applies even if the couple are separated. But you can sign a separation agreement, a legally binding contract which allows spouses to stay married but live apart.

The separation agreement is a legal document that can be used to list the obligations of both the spouses during the separation.  It requires them to come to a mutual agreement regarding issues like child support, visitation rights, property division etc.

You can also consider alternative options to separation agreement and file a protective order, temporary order or a suit affecting the parent-child relationship.

Should I buy a house while being separated in Texas?

The Texas law does not recognize legal separation of spouses which means that any property acquired is community property.

So, if you buy a house without obtaining a divorce, the ownership of the house shall be shared with your estranged spouse.

The law does permit you and your spouse to come to an agreement regarding the conversion of the community property to separate property. So, if you can get your estranged spouse to agree, you can sign a marital property partition agreement to own the house as a separate property.

How long does legal separation take in Texas?

The time for getting legal separation can vary from state-to state and also depends on the complexity of the agreement.

In Texas, legal separation is not recognized. But you can file a separation agreement before a judge which is a mutually-agreed

If you want to file a divorce, a compulsory 60-day waiting period is required. Even an uncontested divorce typically takes upto 120 days. When the community property division and children are involved, divorce may take longer.

Until then, you can sign a separation agreement with mutually agreed terms that are legally binding. These terms can be considered when filing for divorce.

What is a Suit Affecting the Parent-Child Relationship? 

The Suit Affecting the Parent-Child Relationship (SAPCR) is a legal petition filed before a judge that requests an order regarding shared obligations regarding the child. E.g.child support, child custody, visitation rights, child’s health insurance and other rights/duties of the parents for ensuring the welfare of the child.

An SAPCR can be filed in Texas if:

  • the child’s home state is Texas and is a resident since birth
  • the child resides in the state
  • the child resided in Texas at least for the last six months

Once the SAPCR is filed in the court, the court ruling is legally binding and the court can exercise jurisdiction over any concerning issues. Any modifications to be made to the arrangement must be made by filing a new petition called Suit Modifying Parent-Child Relationship(SMPCR).