What is a Separation Agreement?
What is a separation agreement? Separation agreements aren’t covered in the Texas Family Code as a term, but it’s generally understood to mean a written agreement approving ending a marriage or a live-in relationship. The key here is that the ending of the relationship does not occur until the court signs a final divorce decree or final order in the case.
The signing of the agreement isn’t the end of the process. However, it does set the terms for the final order. It is a way of formalizing what has already been occurring during the time the parties have lived apart. It will picking up where the parties did then and puts into writing ahead of the final order what they want to happen after the divorce.
For example, the parties might use the agreement to designate property as community versus separate if the house was purchased after the date of marriage but the mortgage was paid only by the income of one spouse. Their finances may not have changed enough from the time they were on good terms to know how to allocate the money — this is the legal way of dealing with a time of change.
This is allowed in Texas, but the courts will still have to approve it . A "decree of divorce" can be based on an agreement of the parties, even if it does not meet the requirements of TEX. FAM. CODE ANN. sec. 7.005.
The "decree of divorce" granting the divorce may be without a hearing on the pleadings, stating all disposition of community property, child support and conservatorship, custody and possession or access. Where the pleadings comply with statutory provisions and the judgment follows the same is not subject to collateral attack. The decree will not be set aside unless it is shown that there was fraud or the provisions for division of the common property of the parties are not fairly and equitably made. McLain v. McLain, 152 S.W.2d 115, 116-17 (Tex. Civ. App.-Dallas 1941, no writ).
Some states legally recognize separation agreements as divorce documents in their own right and allow for divorce through them alone, as long as there are no children. If that’s the case, there will be a divorce decree without a hearing and no appearance before the court. But with the divorce statute so short in Texas — comparing to those of many other states — our courts expect to have a hearing at some point, even with separation agreements and mediation agreements.
This is true even if there are no children involved.
Legal Requirements in Texas
In Texas, separation agreements are not required to be in writing. However, for certain provisions to be enforceable, the agreement must comply with the statute of frauds. The statute of frauds requires a written separation agreement when it provides for the division of real property.
Under section 7.006 of the Texas Family Code, if the spouses agree on the division of the community estate prior to the dissolution of the marriage, and the agreement, or a binding memorandum of the terms thereof, is signed by the parties, the court shall render a judgment adhering to the agreement. The court shall incorporate the terms agreed upon into the decree of divorce.
Section 7.007 of the Texas Family Code governs the entry of an agreement to partition or exchange community property before or after the marriage of the spouses. Such agreements are enforceable without a court order. Texas case law holds that agreements executed as part of a divorce settlement or executed prior to marriage are enforceable. Further, such agreements may be considered in the division of property upon divorce.
Components of a Separation Agreement
Separation agreements in Texas serve as a vital resource for those who have decided to live apart but are not yet ready to pursue a legal divorce. These agreements, which set forth terms related to issues such as child custody, property division, spousal support, and debt allocation, play a crucial role in maintaining order during this often stressful transitional period. To ensure that the agreement addresses all relevant issues, the following elements should be included:
– Child Custody:
Addressing child custody, parenting time, and child support is essential in order to minimize conflict and prioritize the children’s best interests. Parties may choose joint legal and physical custody, solely or jointly. A non-custodial parent may enjoy specified visitation rights with the child or children.
– Property Division:
The division of marital assets and debts is a key element of a separation agreement. This may entail equitable distribution of property and sales of certain assets, if any. Parties must reach agreement on the future use of assets such as the marital residence, vehicles, and works of art. Additionally, any debt obligations should be allocated so that both parties understand what they owe and how it will be paid.
– Spousal Support:
It may be appropriate to include a provision for temporary alimony or spousal maintenance, speculating on the prospect of a final order awarding ongoing support after a divorce.
– Tax Considerations:
If filing taxes jointly, parties must allocate any tax refunds or liabilities resulting from the family’s prior tax year. Further, parties should address whether either spouse can claim a dependency exemption for any children for the current or subsequent tax years.
– Health Care Coverage:
Certain provisions may be added relative to the provision of health care coverage for the custodial children as well as future health care insurance needs for both parties.
Ultimately, provisions contained in a separation agreement are designed to help couples maintain a sense of normalcy amidst the uncertainty of a potential divorce. The ultimate purpose of a separation agreement is to ensure that both spouses have the opportunity to agree on how to address important issues while leaving their personal futures open.
The Difference Between Separation and Divorce in Texas
The primary difference between a divorce and a separation agreement is that a separation agreement does not have the same binding effect on marital status issues (such as which spouse is entitled to a partition of community property or which spouse is entitled to possession of the children and under what circumstances) as a final divorce. Because there is no "no-fault divorce" in Texas, a couple may separate in order to avoid the cost of hiring a divorce attorney until the couple has enough money to afford to hire a divorce attorney to get a divorce. Some people may want to separate in order to keep benefits, such as social security or health insurance, which would otherwise be unavailable to them in the event of an actual divorce. Or maybe the couple has made commitments to other family members to be together, which the couple would feel obliged to break in the event of a divorce. Consequently, some couples who would otherwise be eligible for a divorce may elect to separate temporarily instead of pursuing a divorce. A couple contemplating leaving home should consult with a divorce attorney to answer their questions about and to obtain assistance with a legal separation.
How to Draft a Separation Agreement
Negotiating and drafting the separation agreement is a critical part of the process. It requires careful thought and consideration. In Texas, you do not have to be legally separated before you can file for divorce. However, if you and your spouse (or ex-spouse) choose to be legally separated rather than divorced, you may still be entitled to a temporary order setting forth how you and your spouse will operate in your separate lives. Keep in mind that these agreements are not recognized by any Texas court, but there’s no harm in it as long as you and your spouse abide by it. A separation agreement is a written and signed document where you and your spouse agree on the following issues:
- Spousal support
- Division of debt
- Temporary custody of children
- Child support
- Use of community property
- Non-disclosure or limitations on disclosure of confidential information
- Payment of attorney’s fees
- Date of separation
- Declarations of property
- Release of spousal or child support
- Whether the parties will reconcile
If you reach an agreement on some (or all) of these issues , then please make sure you have an experienced family law attorney review this agreement and draft a formal binding contract. Even if you and your spouse are able to easily reach an agreement on every issue, you should still hire a divorce attorney to ensure the enforceability of the contract. It is a good idea to hire a divorce attorney with trial experience because if you and your spouse cannot reach an agreement and the case proceeds to trial or mediation, there may be similar terms that will need to be included in the divorce decree after the final divorce is granted.
Enforceability and Limitations
Separation agreements in Texas have some level of enforceability. Under Texas Family Code Section 7.006, if the parties have made an agreement regarding the division of property and liabilities, the Court may enforce the agreement if it finds that the agreement is just and right, is not the product of fraud, Duress, overreaching, or mutual misunderstanding, and the fact that the parties have agreed to divide their property and liabilities does not prohibit the partitioning of jointly owned property under a partition suit.
However, there are limitations on separation agreements in Texas. Family Code Section 7.006(b) reads: "An agreement made under this section and executed before, during, or after a marriage, including an agreement to partition separate property from community property made or executed before or during marriage, is not enforceable against a party unless the agreement is signed by the party to be charged with the performance of the agreement."
A Judge is not obligated to sign a separation agreement just because the parties have signed it. He or she must still find that the contract is in the best interest of the parties. The critical point is that someone must sign the agreement prior to the court entering a decree of divorce.
The Role of Mediation and Legal Counsel
Mediation can be a crucial part in negotiating and drafting a separation agreement. An experienced mediator can facilitate communication between the parties, identify and address the key issues in the agreement, and help both parties come to a mutually satisfactory resolution. In the mediation process, the mediator encourages the parties to listen to each other and engage in an open dialogue. The mediator will help the parties understand the legal implications of their decisions and the potential outcomes of different courses of action. Once the parties have reached an agreement in principle, the mediator will help them draft a formal separation agreement and final decree. This important document will reflect each party’s rights and obligations going forward, including provisions for the division of property, debts, custody, and visitation. The mediator can also help anticipate and draft for details that may have been overlooked in the initial discussions, ensuring that all relevant issues are addressed in the final document. While an experienced mediator can be invaluable in creating a fair and balanced separation agreement, legal advice can also help in the drafting process. An attorney can explain the rights and obligations of the parties under the law, advise about how the law applies to the specifics of the case, and assist with drafting the separation agreement.
Pitfalls to Avoid
When it comes to the division of assets, concerns for the welfare of minor children, and all that entails, most eventual divorces are usually amicable in nature. In turn, they result in separation agreements that are beneficial to both parties involved. Some people, however, make common mistakes with separation agreements that turn what could have been a simple legal process into a drawn-out battle in a courtroom or at least unnecessary stress.
Mistake #1: Not Having a Lawyer Review Your Separation Agreement. Even if the parties seem to be agreeable with one another, a lawyer still must examine a separation agreement. The tiny details often have significant importance that you may not even realize. If a party or minor children need future support if one party cannot contribute financially for some reason (job loss, death, etc.) or to help pay for specified expenses, an adequate amount is only revealed through close examination and solid legal advice.
Mistake #2: Signing a Separation Agreement Before It’s Finalized Separation agreements are intended to be fair and address the needs of both parties, as well as any minor children involved. A Houston divorce attorney can help ensure that every possible scenario is addressed before the document is finalized. The information provided on a draft can also be used, if necessary, to work out the details of separation agreements. Once finalized , a separation agreement is a signed contract and carries the same weight as a mediation agreement.
Mistake #3: Dealing with a Separation Agreement On Your Own Divorcing couples tend to think that they can handle the preparation of separation agreements on their own. This is an understandable assumption to make when you do not want to ruffle any more feathers than necessary, but the assistance of a skilled and knowledgeable Houston divorce attorney is something that should be considered. These lawyers have insight into the types of conflicts that tend to arise and how they should be handled. If you have minor children and a dispute arises, your attorney has the rules and regulations determined by the state and will work hard to help you get the divorce you want.
Mistake #4: Not Including Legal Language in the Separation Agreement There are certain legal phrases, caveats, clauses, and other phrases that a separation agreement must have to be enforceable in a Texas divorce court. Your Houston divorce lawyer has experience writing these documents, so that you do not have to worry about anything going wrong. At the same time, a divorce attorney can help you go over potential language to ensure that your agreement covers everything possible, as well as ensure that the divorce agreement meets state specifications to be enforceable.