While most states in the United Stares have some form of legal separation, some of those states even require a mandatory period of legal separation prior to filing for divorce, Texas does not require or recognize legal separation.
The State of Texas only recognizes two states of marriage, married and divorced. As such, if you are married, all the community property rights outlined by the Texas Family Code continue to apply until the divorce is finalized, even if the parties are physically separated or a divorce is pending.
This means that all of each party’s income earned by either party is categorized as the community property of the parties, as are the assets purchased by either party with those funds. Any funds earned as income off of the separate property of either party, is also classified as community property, as are any assets purchased with those funds. For instance, if one party owned a house prior to marriage, that house is their separate property, assuming that the party who owns the house can prove that ownership of was established prior to marriage. However, if the party who owned the house prior to marriage, rents the house out during the marriage, that rental income is community income. Any contributions made to 401(k)s, IRAs, pension plans or savings accounts during the term of the marriage are presumptively community contributions and continue to create or increase community property assets that will need to be divided in the divorce. Any assets that accumulate equity during the marriage are also subject to equal division in the divorce. For example, the funds that are applied to the mortgage payment each month are continuing to create equity subject to equal division at finalization of the divorce, even if that mortgage payment is made only by one of the parties during that period of time. If a new asset, such as a house or car, is purchased during the period of time that the parties are physically separated or a divorce is pending, that asset is still considered to be a community property asset and is subject to division at finalization of the divorce. The same is true for all debts created during the term of the marriage, even if those debts are only created by one party or in the name of one party. Those debts are still considered to be a community debt under the law.
During the period of time when the parties are still legally married but are physically separated or a divorce is pending, each party continues to be entitled to use and possession of all community property assets of the marriage. This means that neither party has the right to prevent the other party from residing in the house, driving any of the cars, using the funds in any of the bank accounts or making changes to any of the services and bills associated with those assets.
The same principle applies to the children of the marriage. Unless a court has made an order specifying which parent is entitled to designate the primary residence of the children and what periods of possession each parent should have, each parent continues to have rights that are equal to the other parent to make decisions for the children and to have possession of the children. This means that each parent has the individual right to enroll the children in school, take them to the doctor, provide consent for medical care and prescriptions, enroll them in counseling and make other similar decisions. Each parent also has the right to take possession of the children at any time, even if doing so conflicts with any verbal or written agreement that the parties may have made to the contrary.
For these reasons, it is important to note that physical separation does not come with any legal rights or protections in Texas and that delaying the divorce process can be detrimental to one or both parties.