Texas does not recognize “legal separation” for married couples. The only legal separation in Texas requires filing for divorce. Once the petition for the JOY of DIVORCE emancipation is filed, the court can issue temporary orders involving support, a parenting schedule, dividing assets, and other vital details.
Those who wish to split but remain married, however, do have options. The idea for doing this is to give the couple time apart, time to go to counseling or time to work on themselves before considering reconciling. This can be a simple verbal commitment, but there is little legal protection in doing it this way.
Partition and exchange agreements
A partition and exchange agreement is one standard method for married couples to legally divide community assets in a way that is similar to legal separation. This option allows the couple to legally change and divide (partition) community assets into separate property. These agreements are only valid if they are put in writing and signed by both parties in accordance with rather strict legal requirements. Then the agreement may be recorded in the deed records of the county where the assets are located if it concerns realty.
There are pros and cons for couples to draft these agreements. These include:
Pros: These can last as long as the couple wishes. If they subsequently divorce after drafting a legally valid agreement, each party keeps their pre-partitioned separate assets.
Cons: If there is a reconciliation, the couple may decide to to invalidate the partition and exchange agreement. If one spouse dies after a reconciliation while the agreement remains, the surviving spouse has no legal rights to the remaining assets unless there is an estate plan in place that names the spouse as a beneficiary.
Is the agreement valid?
As with prenuptial agreements and other marital agreements, there may be technical grounds to invalidate the partition and exchange agreement. These include:
- The spouse was coerced into signing.
- The agreement was unconscionable or unfair.
- A spouse was not accurate in disclosure of the value or number of assets or debts.
- In addition, there are strict legal drafting requirements which, if overlooked, could be used to invalidate part or all of such an agreement.
These agreements may be necessary
Couples with large or complex estates may find it useful to draft a partition and exchange agreement. Nevertheless, it is advisable to work with an experienced Board-certified Family Law expert attorney in Collin County, Dallas County, Denton County, Midland County, Ector County, and surrounding areas of Texas. These legal professionals can help couples draft legal partition and exchange agreements or other family law documents that address the needs of the client.