Legal Separation vs Divorce: What Is the Difference?
A legal separation is a court-recognized separation where the couple remains married but is often pursuing divorce. Texas does not allow or recognize legal separations.
Although the Texas Family Code and the family court do not recognize legal separation, a couple can informally separate. Couples who separate before divorce may take steps with the court to protect their rights while they are separated, even if they remain married under the law. For example, the couple can enter into a separation agreement or file a partition and exchange agreement.
Divorce, on the other hand, is the legal dissolution of a marriage. It legally ends the marriage and requires court involvement to finalize its terms.
Entering into a Separation Agreement
Legal separation in the traditional sense is not an option in Texas. Instead, couples who wish to live apart but remain legally married may choose to enter into a separation agreement. It can address some of the same decisions made in a divorce, such as:
While the couple remains legally married, the separation agreement can provide some of the same benefits as a legal separation in other states.
Filing a Partition and Exchange Agreement
If a couple wants to live apart and have separate property, yet do not actually want to file for divorce, Texas allows for a mechanism referred to as a partition and exchange agreement. This an agreement that outlines how the couple wishes to divide their property, which is then filed with the official real property records.
This agreement serves as one method of keeping each spouse’s finances separate until either they divorce or decide to reconcile and withdraw the partition and exchange agreement.
What Are Practical Reasons for Choosing Separation Over Divorce in Texas?
| Reason for Choosing Separation | Explanation |
|---|---|
| Trial Separation | Couples live apart temporarily to evaluate their relationship and decide on next steps. |
| Religious Beliefs | Separation allows couples to maintain their religious beliefs where divorce may be prohibited. |
| Financial Considerations | Staying married can provide financial benefits, such as health insurance, tax advantages, or retained military/Social Security benefits. |
| Emotional Attachment | Some couples still love each other but cannot live together, making separation a viable option. |
Determining if Divorce Is the Right Option
While separation may be right for some couples, for others, it makes the most sense to divorce. Divorce may be in your best interest if:
- There is no chance at reconciliation
- It is a toxic relationship
- There is abuse
- It has caused stress for your children
- There are disagreements on what is community property and separate property, especially if it would be a high net worth divorce
- For whatever reason the marriage just will not work
Dragging it on through a prolonged informal legal separation might not benefit anyone. If you are certain that your marriage is irretrievably broken, consult a local divorce attorney and begin looking at your options.
Some couples are able to handle their divorce relatively quickly and incur fewer fees through an uncontested divorce. Only couples who can agree on all the issues will want to use this option.
When you work with a divorce lawyer, they will be able to:
- Explain the divorce process to you
- Take steps to protect your and your children’s best interests
- Write up temporary agreements while separated
- File the necessary paperwork with the court
- Explain the state’s guidelines on child support
- Devise parenting plans
- Offer counsel on dividing marital property
Should I Seek Legal Advice if I Am Separating or Divorcing?
No matter which path a couple chooses, it is critical to protect your assets and your future. If deciding to separate, this doesn’t usually require help from an attorney. But if you want to draw up a legal separation agreement or you plan to divorce, it’s best to have legal representation. This is especially true when you have assets, property, and children.
An attorney can further explain the differences between a Texas Divorce and separation and guide you in making a decision that’s in your best interests. Contact our law office if you wish to discuss getting legally separated in Texas, divorce proceedings, or any other legal option available to you.
