Rules on Separation Before Filing for Divorce in Texas

By Heather Frances J.D.

Texas couples may choose to separate for many reasons, but couples frequently separate because they are planning to divorce. Separations may mean one spouse physically moves elsewhere, or the spouses may simply begin living separate lives in the same house.

Legal Separation

Texas allows spouses to divorce without separating for any amount of time. Unlike many other states, Texas law does not provide any process for legal separation, which would allow couples to live legally separate lives without actually divorcing. However, Texas recognizes that spouses sometimes need courts to intervene during periods of separation, so spouses can ask the court for orders addressing certain issues prior to their divorce.

Suit Affecting the Parent-Child Relationship

If spouses with children wish to live separately without filing for divorce, they can file a Suit Affecting the Parent-Child Relationship. This type of suit addresses the rights and duties of each parent, the child custody schedule and the amount of child support a parent is required to pay, but it does not require divorce. However, SAPCR cases do not address common legal separation issues, such as property division or alimony payments. Spouses commonly file SAPCR cases if they do not yet meet Texas’ six-month residency requirement for filing for divorce but want to establish rights regarding the children until they qualify to file.

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Temporary Orders

Instead of filing a SAPCR case, couples who qualify to file for divorce can file their divorce paperwork and ask the court to issue temporary orders until the divorce is final. These temporary orders could include the payment of monthly expenses, temporary spousal support, temporary custody of the children and temporary child support payments, much like orders in a typical legal separation. The court can then wrap these temporary orders into the divorce decree or simply allow them to expire when the divorce becomes final.

Separation Agreements

Texas allows spouses to enter into contractual separation agreements or property partition agreements to govern their conduct prior to a divorce. However, Texas considers these types of agreements to be contracts; therefore, they are not enforceable as court orders, so a judge cannot find a spouse in contempt and punish him for disobeying the agreement. Instead, one spouse would have to bring a lawsuit against the other for breaching the contract, which may require a lengthier court process.

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