Important Decisions to Consider When Separating Before Divorce

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It’s not uncommon for spouses to separate before and during divorce proceedings. A period of separation has a way of providing a valuable opportunity for couples to reassess a relationship, seek counseling and work to resolve problems, but the term “legal separation” often generates confusion.
Unlike some other states, Texas family law does not have a provision for filing for “legal separation.” Only on the filing of divorce will Texas courts approve temporary orders regarding the use of property, spousal maintenance, or special requirements of one spouse or another. With some exceptions, these temporary orders may be revised or rescinded altogether before the divorce is final. While separation is common in practice in Texas and elsewhere – and many couples choose to do so for long periods of time – the fact that Texas law does not provide for filing for legal separation creates potential problems.
As a community-property state, spouses living apart are still married in the eyes of the law and to creditors. As such, marital property and financial assets and obligations acquired during this period of separation will likely be viewed as community property under the law and would be required to be divided between the spouses upon divorce.
In the event that a spouse becomes pregnant during a period of separation, under Texas law the husband is the presumed father of the child.
In some cases, parties establish a “partition and exchange agreement” that divides property and separates some or all of the parties’ financial affairs without addressing the legal status of the marriage. While some couples find long-term benefit in such an arrangement, it can create complications in the event that a couple reconciles without revising the agreement.
By not providing for filing for legal separation, Texas family law requires couples to think seriously about the future of a relationship because there are real concerns that come with the legal limbo involved with a prolonged separation that is not recognized by the law