Can I get a “legal separation” in my Austin, Texas family law case?

Written By Chris Merritt

Can I get a legal separation?

This is a question that is often asked by people in Austin, Texas who are having marriage difficulties and trying to figure out what their options might be.  People may have heard of the term “legal separation” from well-meaning family and friends and wonder if this should be something they consider before deciding to file for divorce.

In the state of Texas we do not recognize a legal separation.  Unlike some other states, most notably California, Texas only recognizes you as being either married or single.   Much like the saying “you can’t be just a little bit pregnant”, in the eyes of the law in Texas you can’t be “just a little bit married”.  Regardless of whether you live in separate homes or live completely independent lives from your spouse the law considers you to be husband and wife until a court dissolves the marriage.  This means that during the entire divorce process you are still legally married and the community estate is still in existence. Thus any assets or debts acquired during this time are considered community assets or debts.

If you go cash your paycheck and buy the winning lottery ticket on the day after your temporary orders hearing, despite probably being in separate homes, it is likely that those lottery winnings are community property. (Most people would assume that there would then be enough money for everyone, however, you might be surprised.) Likewise if the day after the divorce is granted and signed, you go out and buy the winning lottery ticket, those proceeds are likely your separate property.

But, you may ask, why does my spouse say that his income is his separate property after temporary orders? Is this true?

Income earned while married is generally considered community property. Until you are actually divorced, not just living apart, the income of both parties remains community property. And like all community property, such income is subject to a “just and right division.”

When the divorce is granted , the community estate ceases to be in existence and each of you will have your own separate estates.