Couples having marital difficulties often say that they are “separated,”
which typically means that they are no longer living together and they
are either working on solving their problems or are on the road down to
divorce. Despite the widespread use of the term in Texas, the state does
not have “legal separation” and does not honor the term “separated,”
especially when it comes to things like property and finances.
Texas only acknowledges “single,” “divorced,” “married,”
and “widowed” when it comes to marital statuses. If you are
on the road to divorce, then this may not really matter as much to you.
However, if you are one of the many couples who isn’t exactly sure
what the future will hold for their marriage, then you may need to mull
over a number of scenarios that could affect you or your spouse post-separation.
Since you are not divorced, Texas considers you still married. Before you
say, “Well, duh,” consider exactly what this means. For instance,
spouses are legally responsible for one another’s financial burdens,
and being separated does not change this fact.
In addition, any property acquired while separated can be considered part
of community property between the spouses, which can definitely change
the property course of the divorce. Our office has handled divorces for
folks who had lived separate and apart for years, acquiring and selling
property, investing, saving for retirement and so on, only to be dumbfounded
when they found out, during a contested divorce, that all of that property,
which was acquired during marriage, was still considered community property
and subject to division by the Court. They were shocked to find out that
their “legal separation” had no legal consequences at all in Texas.
If you and your spouse are separated or are about to separate, be sure
to keep all of these possible consequences in mind. Keep track of which
property is community and which property is separate, so that neither
of you have a surprise after your separation is over, no matter which
path you choose. Even if you don’t plan to get a divorce right away,
it can be invaluable for you to sit down for a consultation with a good
family lawyer. During the consult, you can discuss the consequences of
your separation and options, including how to manage your separate and
community property and the possibility of entering into some kind of marital
property agreement with your spouse, which can, under Texas law, actually
alter the character of property acquired during your separation.