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How can I get custody of my child without going through a divorce?

Let’s suppose that you and your husband were going through some tough times recently in your marriage. You have always had some sort of difficulties in your marriage to this point, but it has become unbearable recently. You are choosing to stay married for several reasons- not the least of which are you would like to see if you and your spouse can work out the problems in your marriage over time. You have appointments with a marriage counselor coming up and are going to be diligent with your spouse about attending. However, you have questions about how to proceed with issues regarding your two young kids.

For the time being, you and your spouse have reached a plan to move apart and live separately. You’ve talked to friends and family about it and that seems to be the most sensible thing to do. Trying to give one another space. Lately, the problems in your marriage have come to a head due to the size of your home not being enough for your growing family. Given that you are not able to upgrade at home the four of you have been in close quarters which has only added to the difficulties that you’ve been experiencing. For that reason, you have decided to move out of the home and into your parent’s rental property. Your spouse will remain in the home and see if he can make some improvements in the living area to give you all some more space.

That this is a time of transition. Instead of living in the same house as your spouse you are going to be living apart. Instead of being able to easily share time with your children and your spouse, you are going to have to figure out how to manage this time together. It won’t be easy to do but it will be important if you want your child to be able to have a meaningful relationship with both you and your co-parent. What your options are is something that you have no idea about. It’s been tough to find answers online. The friends and family who told you to move out to save your marriage have no suggestions for you as far as working out a visitation schedule with someone while you are still married.

The question that you need to have answered is whether a Texas family court can issue child custody orders without first getting divorced. You know that this is an unorthodox question that not many people will ask in their lives. Most folks will get the child custody orders as a part of their divorce and not as a standalone order. However, you want to do something different because you have seen how divorce can impact a child. You and your husband would like to try this out for as long as it takes to repair the breaks in your marriage. Then you can assess what needs to be done moving forward.

Your plan, as of now, would be to try and reconcile the marriage and in the process share custody of your children. He’s a good dad and you don’t want to have to shoulder all the burden of raising the kids on your own or deny him time with the kids. How can you all go about arranging this type of set up and what is the process like in terms of going about achieving your goals? That is what we are going to be discussing in today’s blog post from the Law Office of Bryan Fagan.

If you have any questions about the material that we are going to cover in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as more about how your family may be impacted by the filing of a divorce or child custody case. The process that we are going to discuss today can be somewhat cumbersome so hiring an attorney may be the best course for you to take as you tiptoe this delicate tightrope of a family law case.

Does Texas have legal separation?

The short answer is that Texas does not have legal separation as a part of our Texas Family Code. In other states, you would be able to ask a court to legally separate you and your spouse. This would allow the two of you to remain married but not have to get a divorce. That is not an option in Texas. However, that does not mean that there are no options for you and your spouse to pursue to achieve your goals of remaining married yet having child custody orders issued for your family. Here are some thoughts for you to consider as you start to develop a game plan moving forward.

Protecting your rights is crucial at this stage of your marriage. On the one hand, you do not want to move forward to a divorce due to the finality of that process. Once you are divorced it would be difficult to get back to a point where you and your ex-spouse would be willing to make amends and give the marriage another try. That’s not to say that nobody ever does this after getting divorced, but the odds are not in your favor. It may be best, therefore, to remain married and simply try to make the best of sharing custody of the kids while you all attempt to fix the problems in your marriage. Thinking outside the box may be exactly what the two of you need to do to fix the problems and save your family.

As we mentioned a moment ago, there is no such thing in Texas as a legal separation. The only way to legally do anything about your marriage would be to either remain married or get divorced. You can physically separate from your spouse at any time but that does not mean that your designation under the law as a married person would change. Rather, you would need to go through with an actual divorce through a court that has jurisdiction over your case to get an official and legal divorce. Until then you two are just married people who are not living together. Fortunately for you and your spouse, there are some options that you all can choose from when it comes to putting yourself in a position where you can just about be legally separated from one another even though that is not an explicit option for you under Texas law.

There is a way to accomplish much of what you seek through the appropriate use of temporary orders, protective orders, and a Suit Affecting the Parent-Child Relationship. Additionally, you and your spouse are free to enter into a separation agreement to accomplish the goals that we talked about at the opening of today’s blog post. The key to all of this is that you will need to do multiple things at the same time to move forward with a quasi-legal separation. Looking through the information in today’s blog post is a good place to start but it should not be your endpoint. Call the Law Office of Bryan Fagan and we can provide you with an even better overview of the information contained in this blog post while also giving you context based on the specific circumstances that your family is facing right now.

Temporary Orders

Temporary orders can help you and your spouse determine who gets possession of the children and when. This is a huge issue in a situation like the one we were describing earlier in today’s blog post. Parents think everything is going to work like clockwork when it comes to taking turns with the kids until there is an issue that arises regarding drop off/pick up, the kids voicing displeasure at wanting to go to the other parent’s home, or things of this nature. If you are not wanting to get divorced but do want to see about getting some child custody orders set up then temporary orders are a great way to establish a possession schedule that works well for you and your spouse. This would be done through negotiation and in taking the opportunity to work with your spouse to see what sort of creative solutions you can come up with when it comes to the possession of your kids. The last thing you would want to do in a situation like this is to get into an argument which can lead to the consideration of a divorce.

Can a protective order operate similarly to legal separation?

When we talk about protective orders in the world of Texas family law we are usually doing so around family and/or domestic violence. In a situation where you or your child have been the victims of abuse at the hands of your spouse or partner then a protective order can help keep you and your children safe while you prepare for a longer-term solution. There are temporary protective orders, temporary ex parte temporary orders, and protective orders. Typically, a protective order can last for up to two years. However, protective orders are also relevant to circumstances for people like you who want to stay married but separate themselves from their spouse at least for a period. Having children can complicate this for you but this is a way that you and your spouse may choose to utilize protective orders in your case and situation.

When obtaining a protective order in a situation where you believe that your spouse will be violent with you if left unchecked. The protective order that you request from a court can list when your children have possession time with each parent. As we mentioned earlier in today’s blog post, this is an issue that is ripe for argument and squabbling among people that want to get divorced and are primed for having these sorts of disagreements. If you still want to be able to remain married but also have a practical concern for your safety, then a protective order may be just what the doctor ordered.

It would be uncommon for a person to request a protective order while married and then not also pursue a divorce. However, your family may be one that would stand to benefit from you and your spouse remain married. For example, you all may have a concrete plan which you believe is so well thought out and fool-proof that you want to see if you can pursue that plan before embarking on this journey.

Suits Affecting the Parent-Child Relationship (SAPCR)

A SAPCR is another way that you and your family can attempt to mimic what in other states is known as legal separation. This type of family law case is a child custody case that is not within a divorce. This is the type of order that a father and mother can work together on to build trust, possibly for the future of their marriage. The same can potentially be true of you and your spouse. A SAPCR covers diverse issues like conservatorship, possession, visitation, and child support.

Is being physically separate from your spouse the same thing as getting a divorce?

No, to get a divorce, you need to file your case in a jurisdiction that has the authority to issue orders and hear arguments. Rather, to become physically separated from your spouse you must first legally end the marriage through divorce. A divorce is not the same thing as living with a person other than your spouse. This needs to be repeated since you can only become divorced through filing an Original Petition for Divorce and by following the rules and processes involved.

There can be major financial considerations that you need to pay attention to if you are going to choose to stay married rather than get a divorce. When your spouse is living separately from you then there is no telling what sort of mischief, he or she may be getting himself into. You are responsible to an extent for the financial misdeeds of your spouse. Your spouse can do whatever he wants away from you is a recipe for disaster. Your spouse may be wasting community property assets while you are allowing him to live separately from you. There is an old saying that I think is appropriate for this type of situation: paint or get off the ladder. If you know in the back of your mind that you are going to get divorced eventually then the reasons may not be as solid as you would have otherwise believed when it comes to trying out a separation. Rather, if you know that a divorce is upcoming it makes a lot of sense to go ahead and file. Or you can commit yourself to counsel and attempt to avoid divorce. Either way, unless you are in extreme circumstances of some kind it makes little sense for you to wait to decide for your family.

Separation Agreements

Separation agreements are a quasi-contract between you and your spouse. You two will contract with one another to live together no longer in the same home while spelling out the rights and duties of all persons who are involved in the separation agreement. As it pertains to your children, you can agree on child support, visitation, and all the important issues of your case during this time. Like most legal agreements, if your separation agreement is in writing and signed by you and your spouse then you have a valid separation agreement. This is a much less expensive option for families who are not yet sold on getting a divorce and want to keep the marriage reconciliation hopes on the table for consideration. The help of an experienced family law attorney can be the difference between you achieving your goals and instead hoping to find some small victory that you can eke out.

The common thread that you should be able to pull on is that there are options for you to choose from if you and your spouse are interested in a separation arrangement but are not yet ready to file for divorce. Our attorneys believe that an attorney should have the heart of a teacher and by teaching our clients about the law, each of them can make good decisions in what can be hostile circumstances.

Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as how your family’s circumstances may be impacted by the filing of a divorce or child custody case.

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