Book an appointment using SetMore

Why would you get a legal separation instead of a divorce?

The State of Texas does not have legal separation as an option for spouses who are preparing for a divorce. If you are not yet ready for a divorce but believe that physical separation from your spouse is in your best interests, this can present some problems for you. For one, you may want to protect yourself financially during this period if your spouse decides to act foolishly with money. It can be an intimidating experience to leave your spouse behind knowing that he may take out loans, spend money unwisely or otherwise be a poor steward of your community estate. A person is not divorced in Texas until the judge signs off on the Final Decree of Divorce. Until that point, there is a significant amount of liability you incur by being married. 

Is a legal separation possible for any reason in Texas?

The reality is that legal separation is not a possibility in Texas for any reason. The Family Code does not allow for this status in your marriage or relationship status with your spouse. Legal separation may seem to be an in-between option for you as you wait to determine whether a divorce is in your future. Almost like having the best of both worlds- you can remain married to determine whether a reconciliation is possible. At the same time, you can be separated and have a jump start on divorce (and dating). However, Texas does not allow for this. You can physically separate from your spouse, but you cannot be legally separated from him or her until the judge grants your divorce. 

You may be thinking of a legal separation as a situation where you can have your cake and eat it too, there are legal outcomes that are recognized in Texas that may allow you to accomplish the same goals. Those options include protective orders, Suits Affecting the Parent-Child Relationship, and Temporary Orders. When you think about a legal separation, what did you have in mind? If you wanted to make sure that you and your spouse could work out an agreement to share visitation with the kids, provide financial support to whichever spouse needs it, and prioritize negotiation rather than litigation in a future divorce then these options may be extremely valuable to you moving forward. 

Temporary Orders in a Divorce case

When we talk about temporary orders in a divorce case there are several different advantages that this process can offer. First, temporary orders can determine who will have possession of your kids during the divorce case. You and your spouse may not be able to agree on much these days- hence the divorce. However, even if you cannot agree on anything of relevance to your lives, temporary orders can provide you with marching orders for your case as far as the most important subjects related to divorce. Foremost among those orders are those that relate to the possession of your children during the case. 

Protective Orders in a divorce

A protective order can be obtained if you have been a victim of family violence. While you cannot be legally separated from your spouse during a Texas divorce you can get a protective order. The protective order can state where your children are going to live during the divorce and who can have access to them. An important question during a divorce case is who can stay in the home and who must leave. Rather than worrying about your spouse coming back home and you asking him or her to leave, a protective order gives you some peace of mind when it comes to him or her returning to the home and attempting to gain access to you, the kids, or your possessions. 

More specifically, you can obtain a protective order against your spouse if he or she has hurt or threatened you. Your motivation may be to prevent this type of event from occurring again and a protective order can assist with that. In your petition or motion for a protective order, you will need to ask the judge to do specific things for you. For example, if you want the judge to issue orders regarding your home, kids, or child support then you should ask for that in the petition. 

What a protective order can do is help protect you and your kids while you wait to go before a judge for a hearing in your divorce. You can obtain a protective order without providing notice to your spouse in certain circumstances. This is known as a temporary ex parte protective order hearing. If you do not receive a court document called a temporary ex parte protective order that is signed by a judge, then you do not have a protective order yet. Just applying for a protective order does not mean that you have a protective order. 

Testifying at a hearing may be necessary depending on the circumstances of your case. You should be prepared to speak to the judge when your attorney or the judge asks you questions. The judge may believe it is necessary to order your spouse to leave the home immediately upon the hearing completion. The signed protective order will give you the legal authority to do so. The bottom line is that you need to go to court to get a temporary ex parte protective order. A hearing will be set up by the court once your petition is filed. Usually, this takes a few weeks unless an emergency protective order is sought. The length of the protective order will also be determined in this hearing. The longest a protective order will last in most cases is two years. 

What are some of the consequences of being physically separated from your spouse but not being divorced?

Living apart from your spouse is not as uncommon as you may think. However, there are risks associated with not divorcing your spouse once you physically separate from one another. For one, there are significant financial consequences to remaining married to a person that you are not living with. Imagine a situation where you and your spouse are not living together, and you have no control whatsoever over what that person is doing from a lifestyle perspective. What could this mean?

First, it means that you are not as likely to be able to gain access to their paycheck each month. Living apart physically more than likely means that you will be starting to live apart financially, as well. Your spouse may go ahead and open up their checking account and deposit their paychecks into that account. Not having access to those funds can be difficult for you and your children. A two-income household suddenly going down to a one-income household is not easy from a budget perspective. It's not as if the household bills and mortgage payments will be cut in half simply because you file for divorce. While utility bills and things of this nature may not be top of mind for you as you begin a divorce, those bills are not going anywhere. They can catch you by surprise if you are not focused on making sure that these items are accounted for each month. 

Have you stopped to consider what your spouse may be doing as far as debt and your marriage? If your spouse has a history of financial misdeeds or at least irresponsibility, then you should want to pay close attention to him or her. Could your spouse open a line of credit in your name? Yes. Could your spouse open a credit card in your name? Yes. Could your spouse simply overspend on a credit card that you both have together because he hasn’t realized that your budget is being stretched thinner than ever? Also, yes. These are real-life considerations to pay at this time in your life. 

Showing up to the grocery store and not having the money in your checking account to pay for those groceries can be a tough feeling to deal with. Your debit card is declined at a cash register in Houston can be especially tough if the cause of that decline lives in Dallas or San Antonio now. Your spouse may not even take your phone calls to address the issue. This could have been prevented by filing for divorce as soon as you realized that reconciliation was not possible and that moving out was the final step in that process. Do not hesitate when you have a belief that the marriage is moving towards a divorce. Decide on then act on it. 

Next, consider that if you and your spouse are no longer living together there is likely to be some degree of miscommunication when it comes to paying for bills and other essential items related to your family. Your spouse, for example, may have removed their checking account from the autopay for your utilities and now you will have to create a new bank account to pay for those items or pay for them manually each month. This is not the end of the world, but it can cause temporary interruptions in service and other logistical problems in the short term. Add this to the frustrations associated with raising kids without assistance and the start of a divorce and you have a tough situation on your hands, potentially. 

Your spouse living apart from you opens a world of possibilities as far as their behavior is concerned. If your spouse has moved out in part to begin dating or to pursue a romantic relationship, then the chances are good that your spouse will begin to spend money on that relationship. Think back to the beginning of your relationship with your spouse. I am confident that you and your spouse spent more money on one another during this phase in the relationship than you did while married and living together. That’s just the nature of the courtship process. You can expect the same to apply to your spouse and their new romantic partner. 

The only thing is that your spouse will be spending community property income to purchase dinners, gifts, and other treats for their significant other. Remember that since there is no such thing in Texas as legal separation the income that is used on these expenditures is still just as much yours as it is his or hers. Their spending of this money takes away resources from you, your kids, and the divorce process. Until the divorce has begun your spouse using this money on their paramour is no different than me taking a friend out to lunch one day. 

Stop to think about that for a moment. Until you move forward and file for divorce you are essentially condoning what your spouse is doing while he or she is physically apart from you. Once you file for divorce you can curtail these types of activities, limit your financial exposure, and ensure that the resources of your spouse are in part directed towards the best interests of your children. You have the power to be able to do something about this and to limit the financial stress that you may be under. All it takes is moving forward to a divorce if that is what you think is best for you and your family. 

How do you know when a divorce is imminent?

This is a question that our attorneys receive with some regularity. It is difficult to be able to give you a specific answer to this because every relationship is different. Some marriages can come back from difficult circumstances easier than others. Some people can more effectively communicate and therefore sort through all the tough times better. It all depends on you, your spouse, and your life together. Without knowing anything about that we cannot provide you with any specific response to this question via an internet blog post. 

However, there are ways for you to sort through the emotions, circumstances, and everything in between when it comes to determining when your marriage is moving toward a divorce. First, if you and your spouse are still communicating with one another then that is a good sign. Communication allows you and your spouse to, at least in theory, work through your issues using whatever skills you have at sorting through problems together. If you are willing to put in the extra effort, to talk honestly with one another when the kids are in bed and the television is off then you have the framework in place to work on these problems and avoid a divorce.

Marriage counseling and therapy is also a great litmus test to determine how committed you and your spouse are towards salvaging the marriage. If you bring up the subject of therapy wait a moment and see if your spouse responds favorably. Being willing to discuss therapy is a good sign in and of itself. Your spouse attending therapy with you is a great sign. Completely not being willing to consider it as an option is a sign that your marriage may be in more trouble than you had thought previously. 

If your spouse has shut off all communication with you and has moved out of the home, then this is a sign that your marriage is likely ending and that a divorce is on the horizon. It is difficult at this stage to come to grips with this reality. However, denying reality and choosing not to face these tough circumstances head-on can and often will lead to the sort of precarious financial situation that we described earlier in today's blog post. A divorce is not only the way to end a marriage but the main way to protect yourself and your children in a variety of ways from bad actions by your spouse. 

Any agreement that you and your spouse come to informally between one can potentially help divide responsibilities between one another for a short period. However, you need to know that any kind of agreement like this is not a legal contract or something like a temporary order that you can obtain through a court. To have something more formal and legally enforceable you need to file a divorce and obtain a court order from there to have some peace of mind about what will happen regarding your life during the divorce itself. 

On top of that, you still need to have a plan in place for your life after a divorce. The idea that you would not be able to move forward with the rest of your life because you will not take the steps necessary to obtain a divorce can be overcome by hiring an experienced family law attorney. 

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 about how your family's circumstances may be impacted by the filing of a divorce or child custody case. 

Sign Up Here to Download Our eBook!

Fill out the form below 
  • Please enter your first name.
  • Please enter your last name.
  • Please enter your phone number.
    This isn't a valid phone number.
  • Please enter your email address.
    This isn't a valid email address.
  • Please make a selection.
  • Please enter a message.