Separation Agreement: What Is It?
A Texas Separation Agreement is a contract, or an agreement between you and your spouse that divides the property of the spouses and/or sets out your responsibilities for the children. It can be before or after you file for divorce. If filed before divorce it will be called a Separation Agreement and if filed after divorce it will be called a Mediated Settlement Agreement. In short, this is where the Court does not have jurisdiction or authority to do a division of your property and debts, but you both agree to do the division, this would be done in a non-adversary, informal manner, as a contract. The Separation Agreement is not binding on the Court, although the Court IS required to consider the terms of it if you later ask for a divorce. In some cases, it may be that one spouse does not want a divorce or the spouses are not sure that they really want a divorce, so rather than rush to court, in many instances, parties will sign a separation agreement that divides property and outlines the rights and duties of the parties . When you file for divorce, the Court will look at how prompt and fair the agreement was and may do something different, such as set a date for temporary orders, so that the parties have sometime to undo the indicia of a marriage – purchases, expenditures, children’s activities, etc., to get more comfortable with the notion of divorce. On the other hand, it will be rare that the Court will "undo" very clear delineation of personal property, particularly if it is in a sworn affidavit. If you file for divorce within 60 days, it is very unlikely that a Separation Agreement would have any application, the Court is likely to expect continuing contact while trying to work out the division, the Court is likely to mandate mediation after the issuance of Temporary Orders.
Separation Agreements and Legal Requirements in Texas
When it comes to separation agreements in Texas, there are several key elements that you should know about. Specifically, the law of Texas requires separation agreements to be in writing, and signed by both spouses. As a mutual contract, it cannot be unilaterally created; however, once signed and agreed upon, each spouse will be bound by the terms.
Further, Texas separation agreements must be notarized before the judge will sign the divorce decree. To do otherwise will raise questions about the validity of the separation agreement, as the agreements, once signed, are filed with the court and normally become part of the final divorce decree.
A written separation agreement that is signed and notarized by both spouses, and then incorporated into the final decree of divorce, becomes enforceable by a court of law. In the end, you and your spouse will need to agree on how to divide your property. However, that division will be finalized by the judge at the time of the final divorce hearing. As the court signing the divorce decree is the final official step in making your separation agreement valid, without it, the agreement has no legal force.
For additional information regarding separation agreements, including whether they work for you, how to draft one, and how enforceable they are, please review these common FAQs.
Key Provisions to Include in Your Texas Separation Agreement
A Texas separation agreement should typically include specific provisions addressing each of the following matters:
Property Division. Unless a valid prenuptial or postnuptial agreement controls, Texas community property will be divided on a "just and right" basis. For other than community property, a spouse is entitled to keep separate property free of any claims by the other spouse. The property division component of a Texas separation agreement should implicate the following:
Texas Child Custody. Texas child custody law directs that a parent requesting primary physical custody (either sole or joint) must prove that his/her proposed terms of possession and access are in the best interest of the child. Accordingly, the child custody provisions of a Texas separation agreement should include, among other common components:
Texas Child Support. Child support in Texas is based upon a percentage of the obligor’s monthly net resources. The amount of the child support obligation under a separation agreement should match the amount of child support that would be ordered pursuant to the Texas child support guidelines. This compliance with the statutory guidelines is especially important if the terms of the separation agreement will ultimately be incorporated into an agreed divorce decree at a later time. Practitioners should be cautioned, however, that it remains possible in Texas for the trial court to agree to a child support amount that is higher (or lower) than the statutory amount in certain cases involving appropriate circumstances.
Spousal Maintenance. Texas family code section 8.051 only authorizes an award of spousal maintenance if (i) the spouses are separated or divorced and (ii) one spouse will not have sufficient property after the divorce to provide for his/her minimum reasonable needs. A spouse seeking a spousal maintenance should therefore consider including the following items into a Texas separation agreement:
Texas Debt Division. The property provisions of a separation agreement should be carefully drafted to include express language characterizing community debt and separate debt as "sole responsibility" of the married partner incurring the debt. If the separation agreement is to be incorporated into a divorce decree at a later time, the property provisions should also be carefully drafted to ensure that the trial court cannot irrationally recharacterize separate property or separate debt as community property or community debt.
Advantages of a Separation Agreement
A separation agreement can be a very beneficial contract to both spouses.
There are several benefits to being in a separation agreement. It accomplishes several things. Before separation agreement, a lot requires a lot of thought and decision-making. There are emotional aspects to the decision. If you have children, there are custody issues and visitation issues.
It can be very time-consuming to resolve these situations. So when I have clients come to me and they are thinking about separation, I can see relationships deteriorating and going down a path that leads to divorce. Or it could lead to revitalizing the relationship and making it better, so they don’t even want to go through a divorce. I have seen a separation agreement help clients get to the right decision.
If you and your spouse sign a separation agreement, you sort out all of these issues that we just talked about. You decide who is going to pay what bills. You decide about living arrangements. You decide who gets what property. It is up to you and your spouse to agree to all of these things, but if you can do that, then you have a winner.
Separation agreements are beneficial because they can help you get through all of these decisions in a time-efficient manner. They can reduce the level of conflict between you and your spouse . They can help you and your spouse identify those issues that you could agree upon. And they can also help you identify those issues that you could not agree on.
And a little bit of negotiation can happen with your spouse without attorneys being involved. Your attorney will usually write the separation agreement for you. But you and your spouse can negotiate that agreement, and you can work through some of the issues along the way.
And it can be very beneficial to have that agreement all worked out before you are separated. It can be beneficial if you are a stay-at-home spouse, because you may need the other income from your spouse to get through the separation agreement process.
And it can be beneficial when you are in the process of buying or selling a house. The parties can agree on who is going to pay the mortgage and the other expenses associated with that house and its sale.
Separation agreements are helpful in the case of international jurisdiction issues with spouses. If you and your spouse are separated in Texas but your spouse has moved to London, for instance, then in the context of international jurisdiction, you may be able to file a suit for divorce where the contractually agreed separation agreement is entered before a Texas court.
Common Disputes and How to Avoid Them
One of the most common challenges is lack of information. It is essential to understand that you and your spouse are free to agree to any terms that do not violate state or federal law. Therefore, it is important to know what you want from a legal standpoint, and the best way to achieve this. Seeking advice from an experienced attorney at this point can give you a huge advantage. You may discover some areas of potential negotiation that you have not considered, or you may realize that you simply do not have enough information to make an informed decision.
Another challenge that does not require an attorney to resolve is communication with your spouse. Separation agreements are often reached only after considerable discussion and back-and-forth negotiation. For a person who has not been through this process before, trying to figure out what is reasonable can be extremely taxing and sometimes downright confusing. One clear solution to this common problem is to remember that a legally stable separation agreement benefits not only you, but your spouse as well. So try to always keep in mind that there is no reason to argue the merits of your position, since this will simply weaken your bargaining power. Instead of arguing with your spouse, remember that the information you receive from your attorney will be helpful in showing your spouse why you are seeking certain terms. The more information you have, the better equipped you will be to either negotiate or compromise with your spouse.
When to Consult with an Attorney
Whether you are considering a separation agreement or already in the process of drafting one, seeking legal advice is essential in certain circumstances. In fact, hiring a lawyer experienced in drafting legal agreements should be the first step for most people. An attorney can help you determine if negotiating a separation agreement is appropriate for your situation and whether you need one.
It is important to note that if you or your spouse earn money through a business that is run as a sole proprietorship or a LLC, having a lawyer draft or review the separation agreement is critical. This is the case because unlike with wages, when you are dividing income earned through your business, it is necessary to take into account various factors to ensure the right amount of income is being divided.
There are also other situations where you will want to make certain to consult a lawyer before proceeding. These include:
understanding and anticipating tax issues that could affect the broad reach of a divorce decree ,
dealing with issues such as child or spousal support that will need to be modified if your spouse moves out of state,
divorce agreements for couples who own diverse real estate holdings, rental or commercial properties, or stock in family-owned or closely held businesses, and
if you suspect that your spouse is hiding assets, not making full disclosure, exaggerating claims in order to obtain a greater portion of community property than is rightfully justified.
In other circumstances, however, if you and your spouse have a relatively uncomplicated situation with few assets, you may be able to draft the separation agreement without any legal assistance, as long as you are aware of common issues that need to be addressed.