Legal Separation in Texas: A Closer Look at Pros and Cons

For a variety of reasons, spouses in Texas may choose to separate but not start the divorce process. These reasons can range from financial considerations to wanting to stay married until their children reach a certain age. Some couples separate while attending marital counseling or attempting reconciliation. However, unlike some other states, Texas does not recognize a “legal separation.” But that doesn’t mean there aren’t advantages and disadvantages to living separately while still being married. Let’s dive in and explore the pros and cons of legal separation in Texas.

The Question of Separation vs. Divorce

Many people believe that the date of separation holds legal significance. In Texas, however, separated spouses are still legally married, regardless of how long they have been living apart. Texas is a community property state, meaning that all property acquired during the marriage belongs to both spouses. This includes property acquired during separation. Without a divorce, community property rights and debts continue to accrue.

So, why does this matter? Staying married may offer financial security to both spouses, postpone the cost of a divorce, and allow for ongoing health insurance coverage for both parties. Once divorced, an ex-spouse is typically not eligible to continue as part of a family plan on the other spouse’s health insurance policy. Staying married, even while living apart, ensures continuous health insurance coverage until both spouses can obtain their own policies.

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Separating Finances: The Post-Marital Property Agreement

Texas law allows spouses to enter into a post-marital property agreement, which enables them to separate their finances while remaining married. This written agreement divides property, income, debts, and makes other agreements. With this agreement, you can essentially be financially divorced while still being legally married. However, it’s important to note that signing such an agreement is voluntary, and a spouse cannot be forced to sign. A divorce attorney can assist in preparing this type of agreement and negotiating its terms.

How Long Can You Be Separated?

In general, there is no limit to how long spouses can be separated in Texas. The marriage will continue until a divorce or the death of one spouse. The only exception is in the case of a common-law marriage. If the parties are “informally married” under Texas law, a divorce must be filed within two years after they separate. Failure to make the claim of an “informal marriage” in a timely manner may create a presumption that the couple is not legally married.

Things to Avoid During Separation

If you are separated and not yet divorced, there are certain things you should avoid to prevent future complications:

  • Making Gifts or Spending Money Without Your Spouse’s Consent: Since your spouse owns an equal interest in all community property, spending community money without consent may give your spouse a claim to those funds.
  • Filing Tax Returns Without Your Spouse’s Consent: Coordinating with your spouse regarding tax returns and deductions can help avoid issues with the IRS.
  • Spending Money on a Paramour: Paying for trips, dinners, and gifts for new romantic interests should be avoided to simplify any future divorce proceedings.
  • Changing Beneficiary Designations Without Your Spouse’s Consent: Changing beneficiary designations for retirement accounts, life and health insurance policies, and other accounts without your spouse’s consent should be avoided.
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How We at Garrity Traina Can Help

Our team of experienced lawyers is well-versed in drafting post-marital agreements and providing comprehensive advice on the effects of separation in Texas. If you need assistance or guidance, please contact us to schedule an appointment and discuss your particular case.

Remember, legal separation in Texas may offer certain benefits, but it’s essential to consult with professionals to fully understand the implications and make informed decisions.