Legal Separation vs. Divorce in Texas
Legal separation is a distinct concept from divorce. In some cultures and religions, legal separation may be the most acceptable form of dissolution of the marriage. The process for legal separation is similar to that for divorce, except that the marriage is not terminated by order of court. This means that the parties remain married but have no longer chose to live with each other as spouses. A legal separation has many of the same effects as a divorce; income and property issues are addressed, spousal support may be ordered, members of blended families may file a legal separation to address their individual rights, medical coverage is impacted, financial obligation issues are determined, and life insurance coverage may or may not be required to provide support or maintain the status quo for children of the marriage. Typically, Agreements or Orders on Legal Separation will include determinations about child custody, child support, possession of children, managing affairs of the marital estate , division of property and debt, and other related matters. Without the termination of the marriage, however, no final determinations can be made to dispose of the property owned, debts incurred, and future support obligations including spousal support, child support, medical support and insurance coverage. Even as the parties move forward, the legal separation agreement is based on a temporary or optional basis and not on a final, conclusive basis. Even if it were on a final basis, Texas law does not allow for the resurrection of the marital commune from a legal separation period or the creation retrospectively of a deemed community property relationship for anything acquired after the date of the Legal Separation. In short, the legal separation is a very limited remedy that terminates the status quo of the relationship but at the same time does not do so in any meaningful way; indeed, the death of the marriage is postponed and no real closure is achieved.
Legal Separation: Price and Expenses
Legal separation in Texas is a complicated endeavor. If you are considering separating from your spouse, as opposed to divorce, the question of legal separation may come up. What is legal separation? Typically, it is a division of assets and debts with some degree of support provisions. Generally, it is agreed or ordered by a Texas court, so that the spouses will get some of the benefits and protections of divorce laws, without completely severing the marital relationship for religious, cultural, or other reasons. Since your situation with your spouse could involve substantial amounts of property and assets, legal separation in Texas is a good topic to investigate.
The basic cost of legal separation in Texas is largely similar to a divorce proceeding. The only significant difference in expense would be legal fees that are directly related to drafting and executing the legal separation documents, which is not required for a divorce, and fees for a court-ordered neutral evaluation of assets and evaluations of children to establish custody and visitation arrangements, also known as a collaborative law process. The court may choose to appoint an expert in forensic accounting or a mental health professional to evaluate children and conduct custody assessments.
As you begin a legal separation in Texas, you can expect to pay the following fees:
Legal fees (consultation, retainer, additional hourly fees) – $300-$1500
Court fees – less than $400 (may vary depending on parenting plan involved)
Neutral evaluator (court-appointed) – $600-$1600 per evaluation
Home appraisals – $250-$500
Business valuations – $500-$2500
Retirement plan valuation – $1500-$6000
Custody evaluations – $3500 – $5000
Guardian ad litem – $1000-$4000
Mediation costs – $400-$3000
Texas does not require a legal separation before obtaining a divorce. However, a legal separation can be beneficial in certain situations. For instance, legal separation could be beneficial if your spouse wants a divorce, but you prefer a separation. In Texas, for instance, some state and local sects of the Catholic church will not permit divorce, so a legal separation may be necessary to prevent the dissolution of the marriage, while allowing the couple to live apart.
A legal separation could also be beneficial if you have minor children and a divorce is not possible until a child reaches a certain age. By establishing a legal separation and addressing all of the issues typically found in a divorce (such as asset and debt division, child custody and visitation, and child support), you can help reduce the impact of your divorce proceedings on your minor children.
For any fees incurred during the legal separation process, you and your spouse are to devise a means of payment (if done agreeably) between yourself, or request the court determine payment.
The Cost of Legal Separation
The total cost of a legal separation will vary by case. A separation in which spouses share all their assets is much simpler than one in which separations of assets, debt, and child custody issues need to be addressed. Your attorney will work with you to determine a strategy for your particular case. The most significant aspects of costs are the division of property and debt, and the resolution of child custody and support. The degree of complexity involved in a case will be a primary factor in determining the cost to clients. Offsetting this are the wealth of assets to be divided. A legal separation rarely ends with the status quo for income and assets. Most often, the couple cannot remain in the same household, thus creating the need for two households. The larger the family, the greater the need for two households.
How to Reduce the Cost of Legal Separation
A couple of different methods exist for saving money when going through a legal separation. The first of these is to go through mediation, or alternative dispute resolution (ADR), which does not involve going before a judge. Mediation involves both parties discussing with each other in the hopes of reaching an amicable agreement upon the divorce terms. With the help of a mediator, in this case an attorney, who has met with both parties to discuss the separation terms, the parties can avoid a judge from having any say in the matter.
Without the mediation method, the parties must go through the court. The second way to save money is to hire a Texas lawyer under a flat-fee arrangement, where the total fee for the legal separation or divorce is disclosed up front and the client agrees to pay that amount, regardless of how long the separation takes. In this situation, the client saves money by paying one single fee instead of hourly fees in the thousands.
DIY Legal Separation
Some people choose to create a legal separation without the assistance of an experienced attorney. For those with limited assets and/or without children, this may be a simple and affordable way to separate. With no real property to divide, few assets at stake and no children to fight over, a person can prepare the proper legal documents by following an online guide.
Just as there are lawyers who do-it-themselves, people going through a divorce should be educated about the law so they can codify their legal separation properly. The same rules apply to preparing and completing documents for a legal separation agreement . Once signed and filed with the district court, the separation agreement becomes a legally binding contract. This means that all information included in the initial preparation of the documents as well as any later changes must be agreed upon in writing by both spouses. If you fail to document the changes, they are not enforceable in Texas.
If your separation is uncontested, you can find many online resources and guides for preparing the proper documents. Your separation agreement needs to include: If you and your partner were married for a short time and have no children or other assets, you should follow a DIY method as closely as possible. It is cheap and easy since you do not have to divide your marital property.
When You Should Hire a Legal Professional
The self-represented litigant may be able to negotiate an informal agreement to cover the terms of separation and divorce. However, there are clear situations where the involvement of a legal professional is highly advisable, if not necessary. If you believe that your marriage will be legally dissolved in the near future through divorce, you should contact an attorney to consult as soon as possible. This is especially true if your case has any complex factors such as high assets, contested issues, children with special needs, business ownership, debt, spousal support, or child custody. Additionally, if a restraining order has been placed against your spouse due to suspected abuse (or if your spouse has been physically abusive to you), this is a major indication that you need to consult an attorney. Other factors that require the counsel of an attorney regarding legal separation include: If you attempt to go through the legal separation process without proper legal counsel, you may very well end up causing yourself considerable damage financially, as well as making it far more difficult to dissolve the bonds of your marriage.
Further Information and Resources
For those seeking additional assistance or support on this front, several resources are available. TexasLawHelp.org is a comprehensive resource listing a number of Texas legal aid organizations that can provide both legal information and representation in family law, including legal separation. You can search for legal aid organizations by entering your county or zip code here .
The Texas Bar also provides an online resource guide, which lists voluntary, nonprofit organizations across the state that contribute to the delivery of legal services to low-income Texans whose needs are not being met through other means. Finally, the State Law Library is a good starting point for those looking for resources and help on family law matters. The State Law Library lends books to private citizens and legal researchers on family law subjects such as divorce, common law marriage, spousal and child support, paternity, and child custody and visitation.