What is a Separation Agreement?
In Texas, can you get a legal separation instead of a divorce? Not really, Texas law does not recognize legal separations. Then what is a Separation Agreement?
Usually, in Texas, Separation Agreements are contracts that parties can enter into to divide up their property, make a decision on how to partition parties’ existing property and property to be acquired in the future to be either community property or separate property (see blog on CP v. SP), decide the custody of children (if any), etc. before they get divorced and/or if they are deciding to live separately from now on. Just because you have a separation agreement does not mean that you are divorced and therefore you are still married.
How enforceable is a Separation Agreement?
As for enforcing separation agreements, such agreements are scrutinized more closely than pre-nups by the Courts because spouses owe each other special fiduciary duties (marriage is a special relationship with higher levels of duties to each other). The Court will first look at whether the parties signed voluntarily. The Court will also look at whether the agreement was unconscionable when it was signed and, before execution of the agreement, whether the parties: (1) were provided a fair and reasonable disclosure of the property or financial obligations of the other party; (2) voluntarily or expressly waived, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and (3) had, or reasonably could have had, adequate knowledge of the property or financial obligations of the other party. Even then a court may choose not to enforce the terms.
So, in many cases, if there is a dispute regarding the validity of the Separation Agreement, the Court will decide.
Overall, Separation Agreements can be beneficial if you are not wanting go through an actual divorce but are wanting to live separately. However, just because you have a separation agreement does not mean that you are legally separated in Texas. Only legal separation is divorce. It also doesn’t mean that a court will enforce or uphold you separation agreement if you should later disagree, but never went through with a divorce in court to finalize the terms.