Attentive, Dedicated, Personalized Service

Does separation affect property division in a divorce?

On Behalf of | Aug 19, 2022 | Divorce |

Property division can be one of the more complex issues that must be dealt with during a divorce. Since many couples may be separated for a considerable amount of time before the divorce actually occurs—either by choice or because the process itself drags on—it’s a fair question to ask how that separation will affect the outcome.

What does separation mean in Texas?

For starters, Texas does not recognize legal separation. Unlike many other states, it has no mechanism in place that allows couples to attain the status of still being married, but separated in the eyes of the law. You are either married or you or not married—there is no in between. So, if you separate from your spouse, it is in name only.

Separation and property division

Since Texas is a community property state, nearly all property or debt acquired during the marriage is owned equally by both spouses and is divided accordingly when the divorce is finalized. Because Texas does not recognize legal separation, it means that community property continues to be acquired or disposed of right up until the moment the divorce is completed.

If a couple chooses to separate long before they file for divorce, or their property is complex enough to warrant a lengthy divorce proceeding, a considerable amount of time can pass while the couple is separate but still accumulating community property.

How to get around continuously accumulating property

Let’s say a couple does decide to separate but not yet file for divorce, and they want to divide their property accordingly—what can they do? A couple can enter into a property division agreement on their own, essentially taking on the role of the court during a divorce proceeding, and separate their community property as of the date of their separation. They can also agree that the chosen date will mark the end of them accumulating community property. So long as the agreement is fair, when they do eventually divorce, a court overseeing the divorce will abide by the agreement’s terms.