Texas Law Does Not Include Provisions for Separation Agreements
Every relationship hits occasional bumps in the road. Some bumps lead directly to divorce court, but a high percentage of couples choose to separate for reasons ranging from requiring space and time to heal the relationship to concerns for the children.
But, since Texas law only provides for negotiating the terms of a legal separation after filing for divorce, couples seeking a temporary separation agreement are left in legal limbo if they are not yet ready to make it permanent.
The Plano divorce lawyers at GoransonBain Ausley recognize that a little time and effort can save many marriages. We encourage clients to look at non-divorce options whenever possible, and we can help them create legal agreements to address their needs while they do the work toward possible reconciliation.
Addressing the Needs of the Children
Regardless of any specific marital concerns, nothing is more important than the well-being of the children. This is why the Texas courts can grant parental rights in court orders known as Suits Affecting the Parent – Child Relationship (SAPR orders). These orders require thorough definition of every imaginable issue pertaining to the children, such as (but certainly not limited to) the following:
- Who has custody
- Visitation schedules
- Financial support
- Responsibilities for daily care, control, protection and discipline
The bottom line is that separating couples can achieve the same full protection for their children as they would have after divorce.
Couples Can Address Property Considerations Contractually
Texas is a community property state. Most property acquired during the marriage is community property. Property that is inherited or received by gift is separate property. Also, if a person has a recovery during marriage for personal injuries, that property is separate property unless the recovery was for a loss of earning capacity during the marriage. Property owned before the marriage is also separate property. Separate property is always subject to a spouse’s sole management and control. Community property may be subject to a spouse’s sole management and control. Wages is a typical example of this type of community property. Jointly acquired property is subject to joint management and control of the spouses. The ownership of property can be addressed contractually through a partition and exchange agreement, which essentially makes community property a spouse’s separate property.
Keep in mind, however, that this agreement remains in effect until such time that both parties together cancel or modify it in writing. Even couples who decide to continue with their marriages can experience surprises in the event that they later decide to divorce.
The partition and exchange agreement is governed by Texas statutes (Tex. Fam. Code Secs. 4.101 – 4.106). The statute only covers conversion of separate property to community property. It does not make any provisions for other matters commonly covered either in a premarital agreement or during a divorce proceeding. In a premarital agreement you may provide for spousal support and the payment of living expenses. In a divorce action, a court can provide for who lives in the jointly owned house or automobile.
This does not mean that separating couples cannot address issues such as support or payment of debts. It is just that there may be no means to enforce the agreement if the parties subsequently get divorced – or that the court’s division of community property (including debt and liabilities) will follow the agreement.
Full Protection Requires Experienced Legal Guidance
Separating couples require the same degree of legal protection offered by divorce, but they do not benefit from the hard-and-fast rules offered by Texas divorce law. Taking a piecemeal approach to drafting legal agreements can lead to serious surprises during the separation or in the event of a later divorce.
The Plano divorce attorneys at GoransonBain Ausley understand the legal ins and outs of the various contracts needed to protect the rights of all family members. Contact us to learn what you need in your unique circumstances.
This post was written by Thomas P. Goranson.
“In my experience, seeking to destroy the other side simply does not garner the best results. The wisest and most productive approach is to help clients find the best solutions, while keeping matters under control.” – Tom Goranson