Getting a Legal Separation in Texas

Legal Separation in Texas

Legal separation is when two parties remain technically married but live separate lives financially.  In some community property states, like Washington State, legal separation is a common means for parties to separate from their spouses without going through the divorce.  One of the most common reasons for legal separations are so that a spouse can remain on a health insurance of their spouse.  For example, if are employed by Boeing and your spouse is on your health benefit plan, a legal separation allows your spouse to remain on your plan but also allows both you and your spouse to live separate lives both personally and financially.

Unlike other community property states, Texas does not recognize the concept of Legal Separation.  This means that even if you are separated from your spouse and have lived apart for decades, have separate checking accounts, or even purchased a home separately, Texas still considers your assets to be community property of both you and your spouse, even though she or he may no longer reside with you.  A few years ago, we were involved in a divorce case in which the client, who was gay, married a woman when he was still a young man.  He nor she ever got a divorce from each other.  After the 2015 Obergefell decision, he wanted to marry his live in partner.  However, he soon realized that he never divorced his wife and had to seek a divorce from his wife before he could marry his partner.  Unfortunately, this entitled his now ex-wife to half of his property even though they hadn’t seen each other in decades.

Since Texas does not recognize the concept of legal separation, what can you do?  In Texas, your primary two options are either to proceed with getting a divorce from your spouse or getting your spouse to agree to a post-nuptial agreement that strips out your spouse’s rights to your assets and functions in many, but not all, of the same ways that a legal separation would in other states.  As a general rule, if you find yourself thinking of getting remarried or just wanting a legal separation from your spouse, your usual best course of action is to proceed with a divorce.  Otherwise, the longer you stay married to your spouse, the greater the chances are that your spouse can obtain the community property you acquired during the course of marriage.  Even further, if your spouse earns significantly less than you do (e.g. there is a substantial difference in monthly income) staying married can subject to having to pay spousal maintenance or alimony.

If you find yourself considering legal separation, contact our office at 214-984-0059 to schedule a consultation to explore your best options moving forward for your future.