Texas Flag
Texas Divorce Laws

Separation vs Divorce in Texas: What's the Difference?

Sophia Merton
February 1, 2023

Being separated isn’t a special legal status in Texas– the state doesn’t recognize any type of marital separation. Understanding the difference between separation vs divorce in Texas is important because it can have a very real impact on your property, finances, and more.

In short, the state of Texas views you and your spouse as married until your divorce is finalized. There is no in-between step as there is in many other U.S. states. There are, however, some legal steps you can take to outline the terms of your separation in Texas.

Separation Vs Divorce in Texas: The Difference

Every state in the U.S. recognizes legal separation except for Texas, Pennsylvania, Mississippi, Georgia, Florida, and Delaware.

In most U.S. states, a couple can get legally separated when they don’t want to continue living together but also don’t want to take the step of legally dissolving their marriage just yet. The process of legal separation involves petitioning the court to recognize the separation. Both spouses would sign a legal document that outlines an agreement about issues like living arrangements, spousal support, and child custody.

In fact, some U.S. states require that you legally separate before going through the divorce process.

woman on windowsill sad thinking about separation vs divorce in texas
Unlike most U.S. states, there is no legal recognition of separation in Texas.

If you live in Texas, though, there is no process for getting legally separated because state law doesn’t recognize this type of agreement. There is no legal status between marriage and divorce in the Lone Star State.

You are free to informally separate from your spouse without getting a divorce, but this isn’t something that the state recognizes either. In the eyes of the law in the Lone Star State, you are still married even if you and your spouse have informally separated. This means that any acquired assets still belong equally to both spouses, and any informal agreement you come up with won’t offer the same protection as a legally recognized divorce.

Why Would a Couple Want to Separate Rather Than Divorce?

There are a number of reasons why separation might be an appealing alternative to divorce.

Some people might be driven by religious reasons to avoid divorce even though they plan on living separately for the rest of their lives. Others might want to simply delay their divorce to leave the option for reconciliation or make the divorce process easier on their children.

couple unhappy on park bench discussing separation vs divorce in texas
Some couples might choose to separate before divorcing as a trial, while others might use separation to avoid divorce altogether for a number of reasons.

Though the state of Texas doesn’t recognize legal separation, there are legal avenues that couples can take to establish guidelines that govern their relationship while they are living apart. In the next section, we’ll take a look at what your options are for legally outlining terms regarding how finances will be handled, where parties will live, whether spousal maintenance will be paid, and agreements regarding child custody, visitation, and support.

What Are My Options If We Can’t Legally Separate?

Even though Texas doesn’t recognize legal separation, there are a number of legal measures you can take to protect yourself during an informal separation.

These include:

  • Temporary orders: A request for temporary orders for visitation, custody, or child support in Texas must be a part of a larger case (such as a suit affecting the parent-child relationship or divorce) or based on concerns about the welfare of the child. Terms regarding the payment of a marital debt, including child support and the use of community property, can also be outlined in temporary orders.
  • A “Suit affecting the parent-child relationship”: If you have a child who is considered a resident of Texas, you can settle issues related to visitation, custody, and support without going through the formal divorce process with a SAPCR.
  • Protective or restraining orders: These orders are typically used in circumstances where there has been abuse or domestic violence. However, they can also set terms for issues related to custody, support, and visitation.
  • Partition agreements: This is a method you can use to designate certain assets as separate property while separated but not fully divorced.
  • Post-nuptial agreement: This is a method to put rules in place regarding property division while remaining legally married

There are a number of reasons why a couple might want to stay legally married even though they are not actually living together.

For one, they might simply want some space from one another in order to assess the relationship and work on the marriage. Some individuals that do not believe in divorce for religious reasons also might seek separation arrangements so they don’t compromise their values. Others still might want to extend the marriage before getting divorced in order to receive tax, social security, or other benefits in the divorce.

judge signing temporary orders in separation vs divorce texas
Even though there is no legal separation in Texas, there are legal means you can use to protect yourself when you are separated from your spouse.

While there is no limit to how long an informal separation can last in Texas, the spouses are legally married until they file for a divorce and it is finalized by a judge.

If you and your spouse are informally married (also referred to as married by common law), you still need to file for divorce to dissolve the marriage. Under state law, the divorce must be filed within two years after you and your spouse separate.

If you do not file for divorce in a timely manner, it can create the legal presumption that the marriage never existed. While this might not seem like an issue at first glance because the goal is to dissolve the marriage, it can cause major problems when two people were living as if they were married, and it comes time to separate property and debts and deal with other terms of the separation.

What Is Trial Separation?

Discussing the potential end of your marriage can be incredibly emotional and painful. Not only is divorce expensive, time-consuming, overwhelming, and stressful, but it is also so final.

The average length of time it takes to get divorced in the U.S. from start to finish is twelve months. This means that dissolving your marriage is something that you have to deal with in an ongoing way for potentially a year or longer. Even in the best-case scenario in Texas, divorce commonly takes at least six months to finalize.

box of belongings in informal separation in texas
A trial separation can give both spouses the space to decide whether divorce is the right choice.

The cost of divorce in Texas can range from a few hundred dollars (if you file an uncontested divorce without a lawyer) and more than $20,000.

As you can see, this is a big decision that takes time to carry through. A trial separation can give everyone time to make sure they are making the right decision.

When emotions are running high, it can be difficult to look at the situation clearly, and sometimes a little space can go a long way. It can also be hard to really grasp what it will be like to end the relationship and live apart until it is too late, and a trial separation gives everyone a chance to really think about whether the relationship is worth fighting for.

For this reason, some couples decide to undergo a trial separation for a set period of time. During this time, the spouses live apart. This can help both parties gain a perspective on their marriage without being knee-deep in it and give them time to reassess the state of their marriage.

Many couples will simply make a verbal agreement regarding the terms of the trial separation. The issues covered might involve visitation with children or financial support. However, it’s generally not a good idea to only use an oral agreement if you feel you cannot trust your spouse to uphold their end of the deal or if you think they are going to try and pull something sneaky.

It’s worth noting that trial separation isn’t something that the court monitors, so you will need to decide whether you want to negotiate a contract for property division and a parenting plan or file for divorce if you ultimately choose to stay separated.

How Is Our Marital Status Affected By Informal Separation in Texas?

Since Texas doesn't recognize separation legally, whether formal or informal, your marital status is not impacted. Even if you have come up with a separation agreement and are living separately, the state of Texas will view your legal relationship status as married.

The implications of this are as follows:

  • Beginning a romantic relationship with another person during separation is considered adultery, as you are still married by law.
  • All property continues to be presumed to be community property during separation unless it can be proven to have been acquired before marriage, as a gift to one spouse, or inherited by one spouse.

This means that even if you buy a home on your own with the income you perceive as only being yours,  the property is considered community property if you are only separated and not divorced.

Navigating the divorce process can be tricky, but learning as much as you can about family law in Texas can help make the entire experience a lot less stressful. To continue learning about your rights and responsibilities during a Texas divorce, check out our divorce law blog.

We encourage you to share this article on Twitter and Facebook. Just click those two links - you'll see why.

It's important to share the news to spread the truth. Most people won't.

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.

Leave a Reply

Your email address will not be published. Required fields are marked *

Get Our Divorce Newsletter
Subscribe to receive information, free guides and tutorials