Put yourself in the following situation. You have up your mind to file for divorce. After some months of contemplation, you are sure that filing is the right, next step in your life. That doesn’t mean that you have no questions, however. Aside from issues related to your finances and children you have one, main question that keeps coming back up. Namely, whether you should separate from your spouse first before the divorce?
Since this is a pressing question in your life you head over to talk with an attorney at the Law Office of Bryan Fagan. Since you are a regular here on our blog, you know that our office offers consultations free of charge to the public. These no-strings-attached; no-pressure information sessions are great for a couple of reasons. Number one, they allow you to ask questions in a comfortable environment to experienced family law attorneys. Second, you can receive information based on the specific circumstances you are facing.
After coming to our office, you sit down with an attorney and decide to ask your questions. You do not know this subject. Other than: you know that a divorce is right for you. Your questions have mainly to do with whether you need to separate first. Today’s blog post will detail what an attorney from our office would talk with you about in that consultation.
Does Texas have legal separation as part of the Family Code?
One thing that you had heard about before coming in to talk to our attorney was “legal separation.” You have a friend who lives in another part of the country who just got divorced. She was legally separated from her husband before the divorce began. It sounded like an ideal situation. She was able to exit a tough living situation. Then, she could look at the circumstances of her life more objectively and with fewer distractions.
Although other states do have legal separations the State of Texas does not. In Texas, you can separate from your spouse physically at any time you choose. However, you would not be able to designate that separation as a “legal” separation. With this knowledge in your back pocket, you start to wonder if the law protects you in a separation situation. Is there anything under the law that helps a person move out and start to live separately from their spouse?
The answer to that question, as well, is “no.” The family code in Texas very much encourages people to remain married. Texas does not have legal separation. We also do not have what is known as “alimony” in other states. Texas has spousal maintenance which is similar. Spousal maintenance can only be ordered by a family court judge. Additionally, there are limitations on when it can be awarded. As we said a moment ago- Texas family law encourages married people to remain married.
Without legal separation in Texas should you change your mind on the divorce?
Does the absence of legal separations in Texas family law make divorce less of an option? The answer is most likely, “no.” I can’t think of a situation where you would avoid getting divorced just because you are not able to designate yourself as legally separated. Instead, the law just treats you as being married throughout any separation from your spouse. Indeed, you and your spouse would not be divorced until the very end of the divorce case.
In the meantime, what are you accomplishing when you decide to separate from your spouse? The attorney you are meeting with at the Law Office of Bryan Fagan would point out that there are several immediate benefits to physical separation. First, if you are going through problems with violence at home, a physical separation can help you to remain safe. Living with an unpredictable person is not beneficial for you or your children. Instead, living someplace else gives you time to plan your next steps.
Additionally, a separation means that you can gain a timing advantage when planning a divorce. If your spouse does not know that you are planning a divorce that means that he will need to play catch-up once he does find out. Meanwhile, you can plan out a map for your case. Determining goals based on the needs of yourself and your children would be a logical step, too. Finally, working through a plan with your attorney means considering whether hiring an attorney is right for you.
Benefits of contacting an attorney during a physical separation
Physically separating from your spouse does not mean that you must get divorced. Many people use the separation period to look at their marriage and determine that it is not best to end the relationship. Still, others attempt counseling as a means to improve communication skills. All of this can be done even if you choose to reach out to an experienced family law attorney.
An attorney with the Law Office of Bryan Fagan is uniquely suited to help you. We have been able to walk alongside families just like yours for years throughout the State of Texas. Whether we are helping to advocate for your rights in the courtroom or negotiating with you in mediation, our attorneys are prepared to serve you. The goals that you have created for your case mean a great deal to your future. As a result, they matter to us, as well.
Contact us today for a free of charge consultation. So much of the information you read online is general. As in it is intended to appeal to the widest audience possible. While this information is helpful it cannot provide you with information based on your specific circumstances. That is where a consultation with one of our attorneys pays off. Reach out to us today and we can give you boots on the ground level knowledge about what you are going through.
What to think about when you have separated from your spouse
Once you make up your mind to separate from your spouse it is crucial to have a plan. Separating first before your divorce is like jumping overboard in stormy seas. Sure, it makes sense to jump considering the situation. However, you want to make sure that what you are jumping into is not worse than what you were jumping out of. In this case, the rocking boat is your family home. The rough seas beneath the boat are the real world. Although the boat ride hasn’t been pleasant it does offer some stability. The rough seas potentially offer you nothing but uncertainty.
With that said, have a plan before you jump. Planning to leave the family home and separate from your spouse? Talk to a trusted friend or family member to determine if you will have a place to stay. You can be clear about your expectations for staying over. Length of time, expected problems you may need help with. These are the sort of boundaries you can set up with your friend or family member. If he or she is willing to house you then the least you can do is to provide these boundaries.
Additionally, there are other considerations for you to make when you are planning on leaving the family home. Separating first before your divorce is not unheard of in Texas. Even though there are no formal protections or designations to give in to a spouse in your position that does not mean that leaving the family home is unheard of. However, you need to have a plan which is attuned to your goals for the case. This is where working with an experienced family law attorney can pay major dividends.
A benefit of separating first before divorce: protection for yourself and your children
Unfortunately, one of the realities for families in your position is that safety is sometimes an issue. This does not mean that every family faces some kind of safety risk during a divorce. That can be an issue in your situation. Has your spouse been abusive or threatening towards you? What about the children? Or has your spouse dealt with mental health problems in the past? All of these are relevant considerations during this time in your case.
When deciding to separate first before divorcing you should have a safety plan ready to go. This begins with having your bags packed so they have a place to stay. If an emergency arises where you must leave immediately you must have a bag packed. Include clothing, toiletries, medicine, and any other important papers that you may need access to. This means making copies or saving documents digitally. Having access to this crucial information matters a great deal.
Once you have left the family home you should not stop there. Rather, you should think hard about obtaining a temporary restraining order or protective order. A temporary restraining order can be requested as part of your divorce filing. A protective order can be sought in addition to anything provided in your temporary restraining order. An experienced family law attorney with the Law Office of Bryan Fagan can provide you with information about how to apply for a protective order efficiently.
Risks associated with separating first before divorce: What about the kids?
If you are a parent, then special attention needs to be paid to your children at the initial stages of your divorce. Specifically, deciding to separate before your divorce means the potential for losing contact with your children. For many parents, it is very attractive as far as leaving the family home before divorce. This may be what your family needs to clear the air and keep everyone safe. Either you or your spouse may be considering this type of move.
However, a major risk associated with leaving the family home is the impact on your children. Specifically, how a court would potentially view you leaving the home. Consider what could happen if you leave the family home without your children. If you decide you must leave the family home and you do so without your kids there are consequences, potentially. Not the least of which is that a court could view you as not being responsible for raising your children.
Wanting to be named as the primary conservator of your children is a major consideration for the court to make. If you ask in court for this designation there will be an opportunity for the court to judge your actions. Leaving your children at home without you can be seen as inappropriate. While the decision for you to do so may be justified in your mind it is not that the court could never scrutinize your decision. Be aware of the importance of your relationship with your children when determining whether to separate first before divorce.
Issues related to the family home when separating before divorce
On the financial side of things, the family home is likely your most significant asset. As a result, you need to be careful about how you handle issues associated with family finances. Divorce is usually a time when you must be careful with your spending. Over-committing yourself in a financial sense is not something you should look to do.
With that said, it is understandable to want to find consistency and stability in your life during a tumultuous time. A divorce is certainly an unforgiving and unfamiliar circumstance for most people. As a result, the instinct of many people is to find any port in the storm and hang on for dear life. That port in the storm may be your family home. The family home is a place where you have made memories over many years. That said, it is not worth harming yourself financially to keep.
When you separate before your divorce consider first what your goals are for life after the case is over. If you want to retain the primary custody of your children after the divorce, then it is worthwhile to think about trying to stay in the home. The general rule is that once you leave the home it is difficult to find your way back into it. Whatever your plan is make sure it is well thought out. Over-committing yourself financially is a risk many people take in the context of a divorce. It should not be a mistake that you make.
Perform some work around the home before separating
If you ultimately decide that you need to separate before your divorce then you should only do so after performing a few steps first. One thing that you will need to do is perform a basic inventory and appraisement of your property. This is a crucial step to take to protect yourself financially. An inventory is keeping a log of the property that you own. On the other hand, an appraisement is an estimation of the value of each of your property items.
Performing these exercises will help you to be able to fairly divide your community estate. It will also help to determine which property items belong in the separate estate of you or your spouse. This does not have to be an overly complex exercise. However, you must do the work first before leaving the home. The reason for this is that there is a potential for you not being able to return to the home once you leave. This is a major risk associated with separating before your divorce. Proper consideration should be given to this step in your case.
The attorneys with the Law Office of Bryan Fagan suggest that you document the property in and around your home. This can be done with a notepad and the camera on your phone. Look in every closet, drawer, and bedroom in the home. Keep track of your assets, both digital and physical. Finally, remember to track all your debts. These items matter as well when it comes to community property division.
Final thoughts on separating first before divorce
The decision to separate first before a divorce is an intensely personal one. Without a doubt, you should think hard about whether it is the right step to take. Certainly, moving out before attempting a reconciliation through therapy or counseling would tend to be a mistake. Divorce should be the last option to pursue in most circumstances. Consider talking with your spouse before making any major decisions to leave the home. Doing so can help prevent major mistakes in your life.
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Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
The attorneys with the Law Office of Bryan Fagan 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. Before signing a document or negotiating on a subject you do not know well, contact our office. We look forward to the opportunity of serving you during an important part of your life. The Law Office of Bryan Fagan is on your side.
Evan Hochschild was raised in Houston, TX and graduated from Cypress Creek High School. He went on to graduate from Southwestern University in Georgetown, TX with an undergraduate degree in Political Science. While in college, Evan was a four-year letterman on the Cross Country team.
Following in the footsteps of his grandfather and uncle before him, Evan attended law school after he completed in his undergraduate studies. He graduated from St. Mary’s University School of Law and has practiced in a variety of areas in the law- including family law.
Mr. Hochschild is guided by principles which place the interests of clients first. Additionally, Evan seeks to provide information and support for his clients with the heart of a teacher.
Evan and his wife have four small children together. He enjoys afternoons out and about with his family, teaching Sunday school at his church and exercising. A veteran attorney of fourteen years, Mr. Hochschild excels in communicating complex ideas in family law simply and directly.
