Kirker | Davis will field and answer some common legal questions and updates about the law here.

Separation vs. Divorce

Thinking about separation or divorce details can be stressful enough without rushing into agreements with your spouse prematurely. Before you enter into any type of agreement with your spouse, here are some important differences to know between a separation agreement and divorce.


Under property settlement agreements law in the United States, a separation agreement generally is defined as a binding contract between a husband and wife if it meets certain criteria, but it is not required by law. Unlike divorce, separation agreements do not alter the status of a marriage. It may be in your mutual best interests to execute a separation agreement, however, if you have children, debts, property and other assets.

Texas will approve separation agreements generally if they are willingly agreed to, are reasonable and fair. Even if both spouses have agreed on the terms of separation, speaking with a Divorce Attorney will give you peace of mind that you have not overlooked important details about a separation agreement.

Benefits of Separation Agreements

⦁ Binding.
⦁ Enforceable once it is registered.
⦁ Can be carried out before or after you file a divorce action.
⦁ Establishes property rights and responsibilities of each party.
⦁ Usually becomes part of the final judgement or decree of divorce.
⦁ Protects your interests in marital property and assets whether or not you divorce by limiting how much of your assets either of you can use without mutual consent.

Risks of Not Having Separation Agreements:

⦁ Changes must be filed with the court.
⦁ Your spouse could drain your joint assets without your knowledge.
⦁ Your spouse can close or remove you from joint accounts without your consent or knowledge.
⦁ Texas courts retain the right to approve, change or deny agreements relating to custody, visitation and child support. An Austin Divorce Attorney can help you understand terms that Texas courts may accept.

You must have a valid marriage before you can file a divorce action. Texas has procedures for formal and informal marriages, but do not assume yours is a valid marriage just because you have been together a long time. Chapter 2.401 of Texas Family Code defines three elements that a common law marriage must have to be valid. Informal marriages such as common law marriages are not automatic, for example, no matter how long you have been together or if you have children. A Divorce Attorney can help if you never have registered your marriage with the court.

Understand that a separation agreement does not make it okay to date others even if you both agree it is okay. As long you are married, sexual relations with someone other than your spouse is considered adultery, one statutory ground for divorce still recognized in Texas.

You may have heartfelt intentions to be fair to your spouse or believe they will keep their word, but you need someone who can make sure that you do not short-change yourself. If you are considering separation or divorce, call Kirker Davis LLP before you enter into any type of agreement with your spouse.

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