By: Danielle Murphy, Paralegal
If you and your spouse are going through the process of ending your marriage and separating your estate, you have probably contacted an attorney to start the process for a divorce. You may have also heard the term “legal separation” when discussing your options. So what is the difference between a legal separation and a divorce and which option is best for your relationship?
To start, divorce and separation are virtually the same in that, the parties cease their relationship and enlist the court and an attorney to assist in dividing their assets. The only difference with a separation is that you remain legally married, even though you are no longer together. Because of this, if another party wanted to remarry, they would have to convert their separation to a legal divorce in order to do so.
So, why do some couples choose separation over divorce if it is basically the same thing? Some couples choose separation over divorce if they are unsure if they want to legally divorce, or to attend couples counseling. Additionally, if you or your spouse have benefits through the government or your employer, legal separation would allow your spouse to keep their interest in those benefits. If you live in Texas, however, the option of Legal Separation is not available, and you would have to go through other channels if you wanted to separate but remain married.
For example, if you wanted to separate in Texas, but not get divorced, you could do so by entering into an ‘informal separation’ and you could still enlist an attorney or mediator to divide your assets, but the court would still consider you married, and your assets would still be considered community assets. Additionally, if you have children, you can file something called a SAPCR (aka a Suit Affecting Parent-Child Relationship) in order to reach a custody agreement regarding a possession schedule. While this arrangement may work for some, it does not provide the same security as a legal divorce in Texas as all of your assets, while informally divided, are still considered part of the community estate and would not be protected if there was an issue later on.
For this reason, if you are a Texas resident looking for a legal end to your marriage it would be best to consult your attorney and discuss your options.