Separation Agreement Defined
Before we begin it is important to understand how separation agreements are different from a divorce. A divorce is a legal procedure that ends your marital status. A separation agreement is not a divorce. A separation agreement (sometimes referred to as a "separation and property settlement agreement") is a private, voluntary agreement between you and your spouse. A separation agreement becomes legally binding once both parties sign it. It is generally signed in the hope of having the terms be incorporated into a final order in a divorce proceeding or in a modification decree .
A separation agreement can address issues in the same way that a divorce would address them, but does not require the ‘break-up’ or legal proceeding involved in a divorce. Its purpose is similar to a pre-marital agreement in that it helps both parties cut through the emotional barrier of asking for a divorce or changing the status quo in the marriage. This allows for some level of change to occur without the added emotional difficulties involved with filing for divorce or modifying a decree.
Legal Requirements for a Separation Agreement in Texas
In Texas, to create a legally binding separation agreement, the spouses must agree to the terms in writing. The written agreement must contain certain essential elements. In Texas, a separation agreement must include:
- A clear listing of all community property assets and debts owned by both spouses;
- A clear waiver of any community interest each spouse may have in the property of the other spouse, and of any right or claim each spouse may otherwise have such as the right to that part of the other spouse’s pension plan attributable to time during marriage; and
- If alimony is to be included, it must be clearly spelled out.
In Texas, generally, either spouse may become legally separated. Statutes do not contain specifics on what constitutes physical or legal separation from your spouse.
Separation does not necessarily require court involvement or to live in different residences. Depending on unique circumstances, it is possible for spouses to be considered separated while living in the same area. Spouses may be living separately in one residence or separately in different residences. However, Texas does not require that spouses live apart, at least for a specified period of time, to be considered legally separated.
There are no minimum time requirements imposed by statutes on how long spouses need to live apart to be formally separated. Spouses may be legally separated for undetermined or unspecified periods of time. It is not unusual for some Texas couples to be separated for years, if not decades.
In Texas, a couple may be considered separated when one spouse files a divorce. However, the law does not require that spouses be separated for a period of time prior to filing for divorce. A spouse in Texas is not prohibited by statutes from filing for divorce on the same day the spouses separate, each other both living in different places.
In Texas, although spouses may be legally separated following the events described above, legally separated individuals are still married to each other, and there are effects on property and income. For instance, a legally separated person can still be sued for transactions entered into after separation. More importantly, a spouse may also be subject to state tax liability on income earned by the other spouse since Texas community property laws authorize creditors to sue either spouse for debts owed after the date of separation.
Common Terms Included in a Texas Separation Agreement
A Texas separation agreement typically includes terms regarding one or all of the following:
• Property Division: The parties may agree to division of real and personal property. Alternatively, the parties may agree to the allocation of certain debts or liabilities.
• Spousal Support: One party may agree to make periodic support payments to the other. Periodic support payments can also be made pursuant to a divorce decree.
• Child Custody: The parties may agree to temporary or permanent custody of their children as well as possession and access schedules (possession and access schedule depends on the age of the children and whether parties agree to possession according to a standard possession schedule).
This is just a brief overview. A separation agreement is unilaterally enforceable by a court. If a party fails to comply with a term in the agreement, the other party can initiate enforcement proceedings through the paternity court and request that the terms be honored.
Advantages of a Separation Agreement
A carefully drafted separation agreement provides an immediate benefit to parties contemplating divorce or separation. From a practical standpoint, the agreement sets out in clear terms who is responsible for what. This benefits both spouses by informing them of their obligations under the Texas Family Code or the terms of the agreement well before they will be legally required to fulfill those obligations.
An agreement between parties also serves to minimize or eliminate disputes between them. The ability to agree to support and custody obligations prior to the parties filing for divorce can prove to be very helpful. Having a working settlement agreement in place can lead to the finalization of the divorce occurring sooner as one or both parties may not spend as much time disputing about the terms in a petition and final decree.
The benefit of having a separation agreement where a couple is merely separating from one another yet living apart, is that it helps facilitate the day-to-day activities of the parties. For example, who will be responsible for paying the mortgage, how the bills will be paid, when will the children be with each parent? Having those terms outlined out beforehand helps keep a regular routine while the parties are apart.
Overall, a separation agreement serves to clear up any ambiguity that may arise during the pendency of marital troubles. Not having a clear directive set out in writing can lead to confusion, arguments, and possible litigation. While not legally binding, the agreement acts as a guide for the parties and can minimize the time involved in a divorce.
How to Draft a Texas Separation Agreement
The creation of a separation agreement generally follows the successful negotiation of an agreed divorce. Typically, the parties confer in April or May of a given year, and they mutually agree upon the matter contained within the separation agreement. Counsel for each party first exchanges drafts of the proposed agreement, typically designating the financial items that should be worked out. Negotiation continues between the parties and their counsel until a draft of the agreement is finalized. Some items in the draft agreement to which parties may have to agree can include potential spousal maintenance payments, child support, the division of marital property, debt to specific lenders, and the transfer of real estate title . Additionally, the separation agreement may include a mutual waiver of spousal rights. If one party has an attorney, but the other does not, it is generally advisable for the one without an attorney to hire an attorney to advise her or him on all issues related to the creation of the separation agreement.
Once the parties agree upon the terms of the separation agreement, counsels for both parties begin to prepare the formal separation agreement. The separation agreement is then executed by the parties, and it is filed with the court.
Limitations and Enforceability
Like most contracts, separation agreements can be enforced through the receipt of a judgment if one party refuses to abide by the terms. In such cases, the aggrieved party must first petition the court for an order to compel compliance. Depending on the language and import of the separation agreement, the court may grant a judgment that holds the former spouse in contempt of court, especially if the agreement includes terms that specify certain conditions for maintaining compliance. This case involving a directly related dispute between an Oregon couple demonstrates some of the conditions required for such a judgment.
A separation agreement can later be deemed no longer valid under the law if a divorce is pursued. That basically means that the terms of the agreement become moot after the divorce is finalized, and that the parties will then need to negotiate a new agreement on account of the now-legal relationship of divorce. In some cases, the parties might decide to retain several terms of the original agreement when they negotiate the new terms for their divorce agreement. (This is certainly an area where the assistance of experienced representation can help.)
Enforceability also becomes an issue when one or both of the parties to a separation agreement are still married, but have already reached a verbal or written agreement to separate. Note that Texas recognizes what is commonly referred to as a "trial divorce" — in this situation, one spouse may petition for a divorce, and the couple may resolve many of the terms of the post-divorce relationship through either a written or verbal separation agreement. In these cases, the judge may count the relationship as separate from that point to the final judgment, essentially establishing a period of separation.
Separation agreements can detail provisions related to everything from address changes to financial issues, but they do not come without limitations. To that end, it’s worth noting that the law governing separation agreements does not apply to all issues. For example, there are many matters involving child support and visitation rights that a separation agreement may fail to address. More commonly, parties to a separation agreement will seek the necessary court orders at the time of the divorce. That is another reason why divorce is often called the "final step," and why the prior step of negotiation and separation is commonly overlooked. One of the most critical items in any separation agreement is the protection of assets and credit during the separation period, which addresses some of the main concerns between separated spouses.
In many cases, the advantages of a separation agreement frequently outweigh the disadvantages. Nevertheless, you’ll want to ensure that the agreement is created and maintained in a reasonable manner with the appropriate assistance of an experienced attorney. Sometimes, the needs of a separating couple can be addressed through the use of other legal documents, including but not limited to settlement agreements, mediated agreements or even collaborative divorce agreements.
FAQs
Q: Can my separation agreement be modified later on?
Most of the time like in a Texas divorce the terms of a separation agreement cannot be modified after the parties sign it unless they agree to it or the court deems that one spouse failed to disclose all of his or her assets.
Q: Does a separation agreement impact any future divorce proceedings?
No – the terms of a separation agreement cannot be reconsidered during any subsequent divorce and any Texas divorce will be decided in accordance with Texas law, paying no mind to the terms of a separation agreement .
Q: Do parties need to get a court’s approval to the separation agreement in order for it to be enforceable?
A judge’s approval is not required for a separation agreement. That said, a judge can review a separation agreement as part of a divorce proceeding for the purpose of incorporating it into a divorce decree. This should be done in order to protect the enforceability of the terms.