Texas, unlike some other states, does not have statutory provisions for a “legal separation.” Spouses can physically separate, but because Texas is a community property state, all the statutory and constitutional provisions continue to operate on the marriage as if the parties were still living together.
This means that income, the addition of debt, the acquisition of property and all other attributes of a marriage continue and are not affected by a physical separation of the spouses, including the fault grounds set out allowing a divorce.
How to Protect Your Interests
There are, however, other legal ways to protect the interests of spouses during a designed separation. Methods that have been used by spouses who want to separate but not divorce for the time being include:
- Contractual separation agreements: This is not a separation agreement ordered by the court but instead a contractual agreement between spouses. Contract laws would govern any issues or disputes that could arise from the contract.
- Property partitions: This is similar to a contractual agreement, only it focuses on the property between the spouses. This provides for the division of property but again is not ordered by the court.
- Filing for a divorce and entering into temporary orders with no desire to complete the divorce: This means parties would file for divorce but file for temporary orders on all issues such as property division, child support, child custody and spousal support/alimony. These orders remain in place until either party proceeds with a final divorce decree.
These options can protect the separating parties from unintended, or unforeseen, consequences that could arise from a separation without divorce.
