Texas Divorce Laws

How to Enforce a Texas Separation Agreement

By:
Sophia Merton
Updated
August 19, 2022

Texas is one of a small handful of U.S. states that doesn’t recognize legal separation. This means that couples desiring similar outcomes to those they would normally receive from legal separation have to take a different avenue. One such option is known as a separation agreement. Before you choose to create such a contract, though, you likely want to know how to enforce a Texas separation agreement.

After all, creating a document that both parties agree to is only one part of the battle. If a spouse is unwilling to abide by the terms that were agreed upon, it’s important to know what options you have for enforcing the contract.

It’s also a good idea to understand why you might want to create a separation agreement, and what your other options are for living separately from your spouse while remaining married.

Let’s take a look at what you need to know about alternatives to legal separation in Texas and how a separation agreement can be enforced if necessary.

What Is a Separation Agreement?

A separation agreement is a contract that the judge and both parties sign. This document puts the terms of a couple's separation in writing.

couple fighting over separation in texas

While you can't legally separate under Texas law, creating a separation agreement is one of the avenues you can take to produce similar outcomes to legal separation.

The state of Texas, however, doesn’t recognize legal separation, unlike most other states. In fact, many other states require separation before filing for divorce. There are only six states where legal separation isn’t an option:

  • Texas
  • Delaware
  • Georgia
  • Florida
  • Pennsylvania
  • Mississippi

This means that you don’t need a formal agreement to separate in Texas. If you’re looking to create any of the following court orders, though, you will need a separation agreement that is in writing and signed by the judge:

  • Child support
  • Visitation
  • Child custody
  • Exchange separate property

This contract is a way for both parties to be protected in a separation. It also helps to keep both parties accountable to the other. A spouse can ask the court for intervention and enforcement if the other spouse ignores the agreement.

Texas Laws About Separation Agreements

Since legal separations aren’t recognized by Texas law, couples must file for divorce if they want to modify their relationship status. They are, of course, free to choose to live separately without getting a divorce.

Couples that don’t get a divorce are able to create a separation agreement, which is akin to other marital contracts in many ways. This is because they allow the parties to establish their obligations and rights and provide a number of the same benefits that could be gained through legal separation in other U.S. states.

What’s the Difference Between Legal Separation and Divorce?

If you and your spouse have reached a point in your relationship where your marriage seems irreparable, there’s a good chance you’ve discussed the options of separation or divorce.

couple fighting over separation in texas

Getting a divorce is a lengthy and costly process that dissolves your marriage. Some couples might try to separate first to give themselves some time to determine whether or not divorce is the right option for them.

A divorce is a legal procedure that results in the termination of the marriage. Either spouse has the option to start the process of getting divorced by filing an Original Petition for Divorce with the county court.

As a part of the divorce process, couples typically reach agreements on a number of key issues, including:

  • Property division
  • Child custody and visitation
  • Child support
  • Spousal support

In most cases, couples come to an agreement on any relevant issues before they meet with a judge. If any terms can’t be worked out, however, the court will decide the outcome for those issues that the couple can’t agree upon.

The conclusion of the divorce process involves the court formally ending the marriage. This allows both parties to re-enter their lives as single individuals without the obligations and rights of marriage to the other person.

In most states, a legal separation is an option that is similar to divorce. The couple or the judge will make decisions about the same types of issues listed above. The difference, though, is that the spouses are still married legally even though they aren’t living together anymore.

If a couple is legally separated and one spouse wants to get remarried to someone else, later on, they will have to ask for their separation to be converted into a formal divorce by the court.

However, since the state of Texas doesn’t recognize legal separation, couples that want to live separately without getting divorced will have to choose between a number of different options. We’ll discuss each of these a bit later on.

Why Do Some People Choose Separation Over Divorce?

In states where legal separation is an option, some couples might choose to legally separate rather than pursue a formal divorce.

couple considering reconciliation after texas separation agreement

Some couples might choose to separate rather than divorce for a long list of reasons. One of these is giving the relationship some breathing room to determine whether the issues at hand are really irreconcilable.

There are a number of different potential reasons why they might make this decision, including:

  • Providing some breathing room in the relationship
  • Giving each party the opportunity to spend time apart
  • Allowing some space to come up with the best plan for the family
  • Giving the couple time to attend marital counseling
  • Testing the waters before divorce if they aren’t sure that it’s the right choice

In addition to the above reasons that largely have to do with providing space in the relationship in order to determine if they really want to get a divorce, there are also some financial and practical reasons people might opt for legal separation instead of divorce. These include:

  • Having the ability to continue providing employer-sponsored health coverage for a spouse (people in states other than Texas that want to go this route should make sure that separation doesn’t trigger benefit termination)
  • Having moral, social, or religious objections to divorce
  • Preserving your interest while living separately from a spouse for people that have accumulated social security or other valuable federal benefits

If you live in Texas and you’re interested in getting separated first, it’s important to know that this isn’t a legal process like it is in other states. However, you do have options for creating a scenario that is similar to that of legal separation.

Are you wondering how much the total bill is going to be at the end of your divorce? This article looks at the cost of divorce in Texas.

Can I Get a Legal Separation in Texas?

Texas is one of six states in the U.S. that does not recognize legal separation. If you want to formally end your marriage, you have to get divorced. You are allowed, however, to make temporary arrangements and live apart when your divorce is still pending.

If you are interested in separating from your spouse without getting a divorce in Texas, there are methods you can use to create an informal separation.

Since Texas law doesn’t recognize formal or informal separation, though, you’ll want to understand the following points:

  • You are still legally married in the eyes of the law, and any acquired assets are therefore viewed by the courts as community property (this means that they legally belong equally to both parties)
  • You won’t get the same protection from an informal agreement as a divorce

For married couples that have children together, you can ask the court to determine child support, child custody, and visitation when there isn’t a pending divorce. This is known as a suit affecting the parent-child relationship. This will provide a finalized parenting plan that can only be changed through the court.

If a suit affecting the parent-child relationship is filed by one spouse and a divorce proceeding is filed by the other, the two requests will be merged by the court into divorce proceedings.

Couples can also choose to draft a partition and exchange agreement that divides and transfers community marital property into separate property.

If the spouses choose to get divorced with this type of agreement in place, the court won’t divvy up the assets or property listed in the agreement. On the other hand, if you and your spouse decide to get back together, you’ll need to terminate or modify the agreement in order for it to be void.

What Is a Trial Separation?

The decision to dissolve a marriage is typically incredibly painful and emotional. Couples don’t take divorce lightly, and it can be difficult to know whether a marriage is truly irreconcilable.

couple fighting over separation in texas

A trial separation is an agreement to live separately for a certain period of time. This can give couples a chance to understand what it would really mean to be divorced.

In these instances, spouses might want to participate in a trial separation. This is when the two parties live separately for a specified period of time.

This can give both individuals a chance to take a look at their marriage and assess whether they can still work things out. It can also provide some breathing room for deciding what the next steps are in their relationship, whether it’s divorce or an attempted reconciliation.

In most instances, a couple can verbally agree on their trial separation terms. These might include parenting arrangements and financial support.

If they don’t end up getting back together, though, the couple will need to either negotiate a formal property division and parenting plan agreement or begin divorce proceedings. It’s worth noting that trial separations aren’t something that is monitored by the court.

Options in Texas That Provide Similar Outcomes to Legal Separation

Since Texas doesn’t offer couples the option to legally separate rather than get divorced, you’ll want to look at the other available options if you’re looking to achieve similar outcomes as those you typically associate with legal separation.

The following options are available to couples that are looking to achieve many of the same goals legal separation offers in other states:

  • Temporary orders
  • Protective orders
  • Suits affecting the parent-child relationship
  • Separation agreements

Temporary Orders

Temporary orders are court orders about your children or use of property that can be put in place when your divorce is pending. Temporary orders can be requested by either party in a family law case by filing a Motion for Temporary Orders.

Temporary orders remain in place until they have been modified by a judge or the judge signs a final order.

Protective Orders

Victims of family violence can gain protection through protective orders. These orders can dictate:

  • Who has access to the children and where the children live
  • Which party has to leave the marital home and who gets to keep living in the family house
  • The terms of child and spousal support, if applicable

In many cases, protective orders expire two years after they are put in place.

Suits Affecting the Parent-Child Relationship

This type of case involves a judge making decisions about the following issues:

  • Child custody
  • Child support
  • Visitation
  • Medical and dental support

If an Acknowledgment of Paternity has been signed by both parents, a SAPCR case is the right type of case to file for people that need terms set as a part of a parenting agreement outside of divorce proceedings.

However, if an Acknowledgment of Paternity hasn’t been signed by both parties, you’ll probably want to file a paternity case instead. This is a case where the judge deals with all the same issues as those in a SAPCR while also establishing paternity.

Partition and Exchange Agreement

This is a contract where a couple can transfer marital, community property to each spouse so that it instead becomes each of their separate property. If you do end up going through with a divorce down the road, the court won’t divvy up the property that is transferred to separate property via this agreement because it is no longer legally community property.

However, if you and your spouse end up getting back together instead of getting divorced, you will need to terminate or amend the agreement if you want it to be void.

You might think it doesn’t matter whether your property is seen as separate or community if you’re getting back together, but that isn’t the case.

For example, if one spouse dies before you terminate the original partition agreement, the living spouse won’t automatically receive the property that is listed as belonging to the spouse in the agreement. In fact, there’s a good chance that the property could end up getting transferred to the spouse’s heirs rather than the living spouse.

Separation Agreements

Finally, another option to achieve some of the same outcomes of legal separation in Texas is by creating a separation agreement.

This is a contract for spouses that aren’t officially divorced but are living separately. Separation agreements can set requirements for financial support, visitation, or property rights and therefore can provide similar outcomes to legal separation.

One of the reasons that couples pursue this option is that it offers a timely and cost-efficient method of specifying the rights and obligations of each party while living apart. In order to be valid, the specific terms must be in writing and both parties must sign the contract.

While couples don’t need a formal agreement to separate in Texas because the state doesn’t recognize separation, the contract can offer many of the same protections that one would receive through a regular divorce.

Looking to keep costs down when dissolving your marriage in the Lone Star State? Check out these cheap divorce options in Texas.

What Are the Challenges With a Texas Separation Agreement?

A separation agreement isn’t designed to be a permanent solution for couples, but rather a tool used temporarily to help spouses bridge the gap between deciding to terminate the marriage and actually finalizing their divorce.

Getting divorced isn’t a fast process, and it can take months or even years from start to finish, depending on your circumstances.

Creating a separation agreement can make it clear what the rights and duties are of each party during this time of limbo.

While separation agreements can be a good way of memorializing the terms of the relationship while the couple is living separately, there are a number of challenges you’ll want to be aware of. These include;

  • Because Texas doesn’t legally recognize separation, it can be difficult to enforce the terms in a separation agreement
  • Courts don’t look kindly on couples that use separation agreements as a way to remain indefinitely separated

In regard to that second point, it isn’t unheard of for couples to use separation agreements in order to gain some of the benefits of being separated while also maintaining some of the benefits of being married. For example, they might want to keep the tax benefits of being married, or they simply might not want to deal with the time, expense, and effort required to get divorced.

If you aren’t taking formal steps toward divorce and you ask a court to enforce a separation agreement, you likely won’t receive the outcome you’re looking for. A judge will want to hear about what you’ve done to move toward divorce. If you can’t prove that you’ve been pursuing divorce, the validity of your separation will come into question in the eyes of the court and they might be unwilling to enforce your agreement.

How to Enforce a Texas Separation Agreement

Enforcing a Texas separation agreement will likely require enlisting the help of an experienced attorney. You will need to provide the court with a compelling argument and strong evidence, including:

  • Proof that your spouse is grossly abusing the written terms of the agreement
  • Evidence that your spouse isn’t acting in the best interest of the children and is therefore putting them at risk
  • Proof that your spouse doesn’t intend to uphold the agreement or is otherwise neglecting the agreement in the form of emails, texts, voicemails, and other forms of communication
  • Or, evidence that you have been trying to take steps toward formal divorce but the other party is refusing to participate

Depending on your specific circumstances, you might have to provide additional evidence. It is probably the best option to work with an experienced attorney if you choose to try and have a court enforce a separation agreement, gathering all of the relevant evidence and presenting the court with your case is no easy feat for the layman.

Separation agreements tend to be scrutinized more closely than prenups in Texas because there are special fiduciary duties that married couples owe one another.

(Check out this article to learn what a woman should ask for in a prenuptial agreement.)

The first thing the court will look at is whether the agreement was signed willingly and voluntarily by both parties.

They will also look at the following:

  • Whether the agreement was unconscionable at the time it was signed
  • Whether the parties received a reasonable and fair disclosure of the other party’s financial obligations before the agreement was exercised
  • Whether the parties expressly or voluntarily waived any right to disclosure of financial obligations or property of the other party beyond the already provided disclosure before the agreement was exercised, in writing
  • Whether the parties reasonably could have had, or had, knowledge of the financial obligations and property of the other party before the agreement was executed

Even if all of those conditions are met, it doesn’t necessarily mean that a court will choose to enforce the terms of your separation agreement.

Are You Getting a Texas Divorce?

Divorce is difficult, no matter what the circumstances are. Creating an arrangement where you and your spouse can separate for a period of time before going through the costly and lengthy process of divorce can be a reasonable option to give you both some time to think over the relationship. You might find that this time gives you enough breathing room that you are able to revisit the concept of reconciling after some time away or living separately might give you the headspace to realize that you’re ready to move on with your life as a single person.

The family laws in Texas are in some ways unique, such as their refusal to recognize legal separation. For that reason, it’s important to educate yourself on the divorce and family law matters that are specific to Texas rather than getting advice from general resources.

If you’re searching for more information about family law in Texas, be sure to check out our blog at TexasDivorceLaws.org.

Written By:
Sophia Merton
Sophia received her BA from Vassar College. She is a researcher and writer that aims to help make the complexities of the legal system understandable to the layperson. Believing that people can be empowered by understanding their rights and responsibilities under the law, Sophia aims to offer accurate and well-researched information in straightforward and easy-to-digest legal articles.

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