One of the most common questions we hear from clients is whether Texas law requires couples to live apart before filing for divorce. In some states, a mandatory separation period exists before you can even begin the legal divorce process. Texas, however, takes a different approach. In almost all cases, you do not need to be separated before filing for divorce. You can file while still living together, though there are still some specific legal requirements that must be met to proceed.
Texas divorce law is governed primarily by Chapter 6 in the Texas Family Code, which sets out the grounds for divorce and certain of the procedural rules. The most common basis for divorce is “insupportability,” defined under Texas Family Code § 6.001 as when the marriage “has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.” This is Texas’s version of a ‘no-fault’ divorce, and it does not require separation before filing.
The full portion of Texas Family Code § 6.001 reads: “On the petition of either party to a marriage, the court may grant a divorce without regard to fault if the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.”
When Separation May Be Required Or Relevant
While Texas does not mandate separation before filing for divorce, certain grounds for divorce do require proof of living apart. For example, under Texas Family Code § 6.006, a divorce can be granted on a fault basis if the spouses have lived apart without cohabitation for at least three years.
The whole of Texas Family Code § 6.006: “The court may grant a divorce in favor of one spouse if the spouses have lived apart without cohabitation for at least three years.”
This provision is rarely used as a primary reason for divorce, but it can be important in cases where one spouse does want to allege fault and elects to use a long-term separation as the legal basis.
How Separation Affects Property Division And Custody
Even though separation is not a filing requirement, living apart can impact how the court views property division and custody issues. Texas is a community property state, under Texas Family Code § 7.001 generally, which means that property acquired during the marriage is usually considered jointly owned and subject to division upon divorce. If spouses live apart for a significant time before filing, disputes may arise over whether certain assets or debts were acquired jointly or separately.
Texas Family Code § 7.001: “In a decree of divorce or annulment, the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.”
Additionally, in divorce suits addressing custody of children, if one parent has been the primary caretaker during a separation, that fact may influence the court’s decisions about conservatorship and possession schedules.
Filing For Divorce Without Separation
Filing without prior separation can be particularly relevant in cases involving domestic violence or urgent financial concerns. If you are still living with your spouse but need court orders for protection, child custody, or temporary support, you can file for divorce immediately and request temporary orders under Texas Family Code § 105.001. These temporary orders can grant exclusive use of the home, temporary custody arrangements, and financial support while the case is pending. A protective order application, in a situation where family violence has occurred, can have an even more immediate effect.
Why Legal Advice Matters
While the law allows filing without separation, the strategy for when and how to file depends on your unique circumstances. Factors such as shared business ownership, large asset portfolios, or complex child custody issues require careful planning before starting. As experienced Dallas divorce attorneys, we guide clients through the filing process, whether they have been separated from their spouse for years or are still living under the same roof.
Frequently Asked Questions About Separation And Divorce In Texas
Do I Have To Live In A Different House Before Filing For Divorce In Texas?
No. Texas law does not require physical separation before filing for divorce, except in the limited circumstance where you use the “living apart for three years” ground under Texas Family Code § 6.006. Most divorces proceed on the ground of insupportability, which does not require separation.
Can We Still Live Together While The Divorce Is Pending?
Yes, but it may create challenges, especially if tensions are high. The court can issue temporary orders to minimize conflict, such as granting one spouse exclusive use of the marital home.
Does Separation Impact Property Division?
It can. If spouses have been separated for a long time, disputes may arise over whether certain assets or debts are community or separate property. The court will still apply Texas Family Code § 7.001 to divide property in a “just and right” manner.
What If My Spouse Refuses To Move Out?
If safety or severe conflict is an issue, you can request temporary orders under Texas Family Code § 105.001. The court may grant exclusive possession of the home to one spouse.
Is Separation Better Before Filing For Divorce?
It depends on your situation. Some couples separate to cool tensions or test new arrangements for custody and finances. Others file immediately due to urgency in legal or financial matters.
Can We Be Considered Legally Separated In Texas?
No. Texas does not recognize “legal separation” as a distinct legal status. You are either married or divorced, though you can have temporary court orders in place while the divorce is pending.
How Long Do I Have To Live In Texas Before Filing?
At least one spouse must have lived in Texas for six months and in the county of filing for 90 days before filing for divorce under Texas Family Code § 6.301.
Call Orsinger, Nelson, Downing & Anderson Today
At Orsinger, Nelson, Downing & Anderson, we understand that the decision to divorce is never easy. Whether you have been separated for years or are still living together, we can guide you through the process while protecting your financial interests and your family’s future.
Contact our Dallas divorce lawyers at Orsinger, Nelson, Downing & Anderson by calling (214) 273-2400 to schedule a consultation. We serve clients from our offices in Dallas, Frisco, and San Antonio, Texas.