How to Get Legal Separation in Texas: Detailed Step-By-Step Approach

Texas Legal Separation

In Texas, the term "legal separation" does not have a set meaning. In fact, most judges in Texas agree that even though there are court orders in place concerning separate property division and child custody, that a couple is still married until a final divorce occurs.
So while you can file for divorce and request temporary orders related to child custody, insulated from your spouse’s influence, and without the fear that your spouse will try to hide, hamper or frustrate the discovery of community assets, there is no such thing as legal separation in Texas.
One of the reasons for this is that if the court issues temporary orders, the parties are forced to talk to each other with regards to the children and day to day decisions. For many people, this may be why they want a legal separation to begin with.
Legal separation does not divide property or debts, nor does it determine child custody, child support or visitation terms . So technically, if you have these issues settled with a temporary order, then does it really make sense to have a legal separation? If not, then are such temporary orders really essential?
You will find practical legal separation in Texas, but only as a result of the practicalities of daily life. For example, if you have multiple real estate holdings and you and your spouse want to continue maintaining the properties for long term benefits, a temporary order may give you the ability to retain that in the context of your temporary order.
The temporary orders thus have a great purpose. At least, until the divorce is finalized and the issue becomes a final order. The situation changes completely at that point, with assets being split completely and a timetable set into motion for child exchanges or primary custody schedules.

Legal Separation Filing Requirements

Before you can file for legal separation in Texas, certain prerequisites have to be met. First of all, the legal residency requirements must be met. The person filing the lawsuit (the Petitioner) must have been a resident of the state of Texas for the six months immediately preceding the suit and – if the parties have lived in different states -they must have resided in the county where the suit is filed for the past 90 days. This means that if one spouse has been gone for months and is living in another state, they have to reside in the state in which they are going to file for legal separation for at least 90 days before leaving. It’s smart to check with an attorney to make sure that you meet these residency requirements before you spend money filing a lawsuit. For example, you must meet the residency requirements for Texas or else the Texas court will find that they do not have jurisdiction and it will not consider your request for legal separation.
Next comes the documentation. Just like filing for divorce, there are a few forms you will need to fill out and present to the clerk at the courthouse. The Petition, which is basically the same as the Petition for Divorce (as long as it applies to separation), is needed. A citation is also required. And just as in filing for divorce, you will also need a final decree. If there are children, you will also need a child’s information sheet, a petition in suit affecting parent-child relationship, a final order in suit affecting parent-child relationship, a family law information sheet, and a civil case information sheet. Some forms contain information on the petitioner’s behalf, while others are blank for simple completion.
There are also a few issues that need to be resolved before you can move forward. For example, partners must be separated and live in different locations for three months before filing for legal separation. While there is no required waiting period between the time of separation and filing for legal separation, there are a few exceptions. There are no waiting times if the marriage is irretrievably broken, there is an act of domestic violence during the period of marriage, there are children which need child sustenance or support, or a suit concerning enforcement of a child custody order needs to be filed.

Legal Separation Process

The legal separation process in Texas generally involves filing a divorce petition without actually requesting a divorce. When you file a Petition for Divorce in Texas, you must pay a filing fee. There is no fee to file a suit for separation. Consequently, spouses who cannot afford to pay to file for divorce often will file for legal separation with no intent to have themselves or the legal separation case be divorced.
Because you are filing a divorce petition, you need to decide where to file and consider the following:

1) Geographic Restrictions

You must file the legal separation petition in the county where the spouse resides if the spouse is a child under the custody of a relative or in the immediate family of the separating spouse. There are ten counties in Texas that have mandatory waiting periods for all separations:
a) The spouse files in a county that has a 60-day waiting period and the spouse has been a resident of the county for less than six months, the case will be changed to a standard divorce proceeding; and
b) If the spouse files in a county that has a 90-day waiting period and the spouse has lived in the county for less than six months, the case will be dismissed.

2) Filing Steps

A. Fill out the legal separation paperwork (example: Final Decree of Separation)
B. File the legal separation case at the local court that handles family law cases.
C. Fill out a cover sheet form and attach it to the separation papers when filing the court petition.
D. Submit all necessary forms, evidence, and fees to the court.
E. Serve the petition to your spouse in accordance with state law.
F. Attend the hearing, if your spouse agrees or the court appoints a guardian ad litem.
G. Submit your request and attend any hearings related to temporary orders or other issues.
It is important that you consult a family law attorney when filing for legal separation in Texas so that you follow each step thoroughly and properly.

Legal Separation Legal Issues and Challenges

Legal separations in Texas involve a number of legal considerations and challenges from the beginning to the end. If you ever want it to become a divorce, you will end up going through the same legal hoops and obstacles that you would have to clear if you had filed for divorce instead of legal separation. You will have to either negotiate an agreed settlement with your spouse or go to court and ask a judge to divide your property, award spousal support and set child custody arrangements.
If you file an Original Petition for Marriage without Children, the judge can divide your separate property and community property. The community property consists of property that you and your spouse acquired during your marriage. Separate property consists of property that you acquired before your marriage, after a Judgment of Divorce is entered or inherited by you during your marriage. Like all states, Texas does not divide property based on the ownership of the property. Your ex-wife may have acquired the house and car, but that does not affect the percentage of the property you own.
If you have children, have filed an Original Petition for Divorce with Children, and want to secure child visitation and child support orders, the judge will order them along with a property division . In fact, many people in Texas who do not have children do not even file Original Petitions for Divorce but instead file Original Petitions for Marriage to avoid the other issues in the divorce process. After a year passes, they can convert the case to a divorce proceeding.
It is not legally required to have a final trial on the divorce. While it is often necessary for property issues and unrealistic to work out child custody arrangements with a spouse with whom you are in conflict, you can reduce your marital assets to the point where a judge is not likely to award anything. By statute, a judge cannot award alimony. He has the discretion to award child support for a period not to exceed 5 years and can award less than the maximum amount allowed where the facts justify it.
If you have children, you can attend the Divorce Education for Parents class for a few hours, pay the fee and present evidence and hear the attorney’s arguments in favor of limiting your alimony and other issues so the judge can make a fair judgment. Your family law attorney can put you in a position at trial to maximize the likelihood of a winning judgment.

Obtaining Legal Help

While the process to legally separate from your spouse may be fairly straightforward in theory, filing for legal separation in Texas often requires more than just a good understanding of the law. It is important to keep in mind that the law associated with legal separation is often very complicated and subject to many exceptions. As such, hiring a skilled attorney to assist you with the filing of your legal separation documents is an absolutely essential step in the process or you could find yourself with less than favorable results.
Fortunately, finding the right attorney can sometimes be easier than expected. Many websites offer comprehensive directories detailing the top rated lawyers in your area and their practice focus. This is a great place to start looking for an appropriate lawyer. When you have narrowed down your choices, be sure to schedule initial consultations with a few top choices in order to ensure that you are selecting the right lawyer for your case.
The advice of a qualified lawyer cannot be overemphasized. A lawyer will be able to not only answer your questions and clarify any points of confusion, but will also likely be able to craft a legal strategy for your specific circumstances. In addition, they can act as a legal advocate on your behalf should court become necessary. Overall, the best way to go about filing for legal separation in Texas is to seek the advice and assistance of a qualified lawyer.

Options to Legal Separation

In some cases, legal separation is not the right option for you or your family. For many, it simply makes more sense to separate on your own terms, without the involvement of the court. At the same time, you may want to recognize the reality of your relationship — a trial separation may be a good way to do just that. Mediation is also an option for working through your separation or divorce. You could take advantage of the expertise of a Texas family law attorney to act as an intermediary in order to work out the terms on your separation agreement or divorce. In some cases , this can save a lot of time and money, and provide the couple with a clearer roadmap for their future. If you do not want to go through legal separation, but a divorce is not on the horizon just yet, any of the separation options above could be a good fit for you, at least temporarily. On the other hand, it is possible to work with the court to seek a legal separation at some point down the road, even if it is not your first choice when filing for divorce.