Even though many couples choose a no-fault divorce, some decide to file a fault-based divorce based on grounds such as Living Apart. A couple with a legally recognized marriage in the state of Texas, including common law marriages, who decide to terminate their relationship can do so based on simply living apart for three years or more before trial. That is, they have both lived in separate domiciles for that time frame before the court date.
However, a divorce based on living apart is not automatic. A couple is considered married until a divorce is final and the judge signs the decree. One or both parties must file a petition with the court to end the marriage based on the grounds of living apart. A Tarrant County divorce attorney can help you understand your rights and if a divorce is right for your situation.
Living Apart As Grounds For Divorce
Living apart may be an ideal situation for a couple that decides to separate temporarily, resolve their issues, and eventually, reconcile. Because Texas divorce law does not have or recognize legal separation, a couple may decide on a voluntary “trial separation” to give each other space. This does not impact marital status. If not, living apart would be grounds for divorce if there is no expectation of reconciliation after three years.
A trial separation is not the same as legal separation recognized in other states. If you and your spouse decide to live apart for a time, you would just be living away from each other until you decide to reconcile or file for divorce. You would still be legally married until the divorce becomes final.
What Are The Legal Grounds For Living Apart?
The courts generally view this as an arrangement that the couple agreed to since they have been apart for that long. (This can include abandonment, in which one spouse disappears without contact for one year or longer, and can impact the division of marital assets.) It simply means that the two spouses live in different domiciles for three years before the court date. No other conditions are required.
Living apart is the only grounds-based divorce that requires a couple to live in different domiciles. In other types of divorce, especially no-fault, couples can still live together and divorce.
Property Division Based on Living Apart
Texas’ community property laws will be used to divide the marital estate. If you have considerable assets, you’ll need to discuss property division with your spouse and your attorney before filing the divorce petition.
But if you do not have considerable assets, filing a grounds-based divorce may not be worth the trouble. Your divorce attorney can help you decide which one is best for your situation.
Can You Date While Living Apart?
If you do begin dating someone (especially if it becomes a sexual relationship), your spouse can file for divorce based on adultery instead. Remember: a couple in Texas is legally married until the divorce decree is signed by a judge.
If you plan to file based on living apart, but a third party becomes involved, your spouse could change the grounds to adultery. This could potentially leave you with fewer marital assets under Texas’ community property laws. Money spent on a new romantic partner is part of the marital estate until the divorce is final. Therefore, you could be held responsible for paying your spouse half that amount. Dating during the divorce can also impact your parenting time and custody rights with your children if the divorce is based on adultery, especially if your children meet your new romantic partner.
Wendy L. Hart is Tarrant County’s Compassionate Divorce Attorney
If you have lived apart for more than three years and do not intend to reconcile, you can file for divorce on those grounds. We can help you navigate the divorce process and help you move forward to a better future.
Wendy L. Hart represents men and women in all family law matters, including divorce, child support, child custody/visitation, estate law, and other family law issues. She has been helping families throughout Fort Worth and Tarrant County since 2001.
If divorce is in your future, call us at (817) 842-2336 or use our online contact form to schedule your virtual consultation or appointment.