For a variety of reasons, spouses in Texas may choose to separate but not start the divorce process. These can include financial reasons or the desire to stay married until the children reach a certain age. Some spouses also separate while attending marital counseling or while attempting reconciliation. Unlike some other states, Texas does not recognize a “legal separation.” A divorce lawyer can you help you assess the advantages and disadvantages of living separately while still being married.

Is It Better to Just Separate or Get a Divorce?

Many people assume that the date of separation has legal significance. In Texas, separated spouses are still legally married, regardless of how long they have been separated. There is no special legal status associated with being separated in Texas. A couple is either married or not married, irrespective of whether they are still living together.

There is no special legal status associated with being separated in Texas.

So, why does this matter? Texas is a community property state, which means that all property acquired during the marriage belongs to both spouses. Any income, real estate, retirement account, car, business, or debt acquired during the marriage is community property. This includes all property acquired during separation. Without a divorce, community property rights and debts continue to accrue. While spouses are still married to each other, they also owe each other certain duties. Because all property still belongs to the community, each spouse has a duty to not spend community funds in a wasteful manner or incur unnecessary debt.

There may be advantages to separating but staying married. Staying married may offer a measure of financial security to both spouses, postpone the cost of a divorce, and may allow for continuing health insurance coverage for both spouses. Once a couple is divorced, an ex-spouse is typically not eligible to continue as part of a family plan on the other spouse’s health insurance policy. Staying married, even while living apart, ensures continuous health insurance coverage until both spouses can obtain their own policies through work or otherwise.

There is one measure that allows spouses to stay married but separate their finances – a post-marital property agreement. Texas law allows spouses to enter into this type of written agreement to divide their property, income and debts, and make other agreements. With such an agreement, you can essentially be financially divorced, even while still married. However, a spouse cannot be forced to sign a post-marital agreement. Signing such an agreement is purely voluntary. A divorce attorney can help you prepare this type of agreement and negotiate its terms with your spouse.

How Long Can You Be Separated?

In general, there is no limit to how long spouses can be separated in Texas. The marriage will continue until a divorce or the death of one spouse. The only exception is in the case of a common-law marriage. If the parties are “informally married” under Texas law (where the parties were not married by license but agreed to be married and thereafter lived together in Texas and held themselves out as married in Texas), a divorce must be filed within two years after they separate. Failure to timely make the claim that you have entered into an “informal marriage” will create a presumption that you are not legally married at all.

Things to Avoid During Separation

If you are separated and not divorced, here are some things to avoid:

  • Making Gifts or Spending Money Without Your Spouse’s Consent. If you eventually divorce, you may need to account for large expenditures or gifts to third parties. Since your spouse owns an equal interest in all community property, spending community money without your spouse’s consent may give your spouse a claim to those funds. These prohibited expenditures can include travel, gambling, large gifts to family members, or transfers of property to third parties. To avoid any problems in the future, get your spouse’s consent before making these types of expenditures.
  • Filing Tax Returns Without Your Spouse’s Consent. Many separated spouses will eventually separate their bank accounts, credit cards, and finances. Some will also file separate tax returns. Since there are different ways to file taxes and claim deductions, you should coordinate with your spouse to avoid issues with the IRS.
  • Spending Money on a Paramour. It is not unusual that one or both spouses will start new relationships during a long separation. It is frowned upon to pay for trips, dinners, and gifts for new paramours. This should be avoided in the hopes of simplifying any future divorce. It would be rare for a spouse to actually consent to such expenditures, so be prepared to “pay back” anything spent on entertaining a new romantic interest.
  • Changing Beneficiary Designations Without Your Spouse’s Consent. Your retirement accounts, life & health insurance policies, and other accounts may have your spouse listed as a beneficiary upon your death. If these assets are community property, you should avoid changing the beneficiary designations without the consent of your spouse. In the case of retirement assets, your spouse’s written consent to remove him or her from beneficiary status will be required, irrespective of whether the retirement account is community or separate property.

How We at NMSB Can Help

Our lawyers are experienced in drafting postnuptial agreements and advising clients about the effects of separation. Please contact us to schedule an appointment to discuss your case.