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The Risks of Separation
"I need to get a divorce," he said. "Can you help me?"
"Sure," I said. "What County to do you live in?"
"And do you live with your wife?" I asked.
"No," he said.
"Where does she live?"
"I don't know," he said.
"When was the last time you saw her," I asked.
"About 20 years ago."
First, let me say that nothing in this article is intended to, nor should it be taken as encouraging divorce. I have said for years: If you can save your marriage, save it!
I have also said, loudly and often: Getting a divorce does not solve all of your problems. It trades one set of problems for another.
I am not in favor of divorce. I have never talked anyone into one. But I also don't talk people out of them.
I firmly believe that getting a divorce is a personal issue, not a legal one. And when people come to us for legal advice, it's our job to tell them the facts of how the law works. One of the worst things you can do, legally speaking, is fail to act when you know that a divorce is imminent. For more on that, see this article.
This post is an effort to further the knowledge of those that read it about how the law works and where there are risks that they may not be aware of.
Purely legally speaking, saving your marriage may be the number one best choice, but what may seem like the "next best" choice – Separating without divorcing – may not in fact be the next best thing to saving your marriage. You may end up doing yourself, and possibly even your Spouse, harm that you have not thought about.
As for the client that hadn't seen his Wife in 20 years: He ended up losing half of his military retirement because he hadn't made the separation "official" with a divorce.
Can you be Legally Separated?
So, let's start with this: Texas does not have a status known as Legal Separation. You cannot be "Legally Separated" in Texas in the sense that you have some legal status known as "Separated."
Once you get married in Texas – either with a ceremonial, traditional marriage or a common-law marriage – you stay married until you either divorce or one of the party's dies. Separation, even for decades, does not change your legal status in Texas.
"Under Texas law there is no status of legal separation of a husband and wife before the marriage is dissolved by a decree of divorce," said the Eastland Court of Appeals in the 1981 case of Pilot Life Insurance Company v. Koch.
There, the Appellate Court found that the Trial Court properly ordered the Life Insurance proceeds to be paid to the Husband, even though they he and his Wife were Separated. In fact, they were so separated that a divorce had been filed and the parties were living under the terms of a Temporary Order issued by the Court.
Nonetheless, the Court affirmed the fact that Texas has no independent legal status known as Legal Separation. Once married, you remain married until you are not by virtue of a finalized divorce or the death of one or both parties.
Note, however, that there is something known as a Separation Agreement. A Texas Separation Agreement is a form of Post Marital Agreement.
Suppose you and your Spouse properly execute a Separation Agreement. In that case, you may be able to eliminate some of the potential harm discussed below, but you can't eliminate all of it. Some of the items discussed are just the way it is, whether you and your Spouse like it or not.
Another consideration is that just because you have a Separation Agreement does not mean that it is enforceable. In a 2003 case out of Corpus Christi – Morales v. Morales – the Husband found out after almost 10 years of living under a Separation Agreement that a court could find it to be unenforceable. Moreover, the Wife received a Judgement against the Husband of over $735,000.00, along with Prejudgment Interest of 10% for almost a decade and Post-judgment Interest moving forward.
The basic facts of the case were these:
"After forty-plus years of marriage, [the Wife] filed for divorce in 1993. In July 1994, the parties went to mediation and decided to permanently separate instead of pursuing a divorce. Jesus and Santa signed a separation agreement that became effective on July 21, 1994. The agreement states that they will at all times live separately and apart as if they were unmarried. The agreement's stated purpose is to divide their property and provide for the custody and support of their only remaining minor child.
On July 8, 2001, [the Wife] filed suit against [her Husband] for fraud and breach of contract regarding this agreement. She alleged that [her Husband] had misrepresented their marital assets, rendering their agreement unfair and unenforceable. The jury found the agreement not enforceable and awarded [the wife] $ 735,735, as well as pre- and post-judgment interest."
In its analysis, the Appellate Court described some of the most critical issues to consider when making an agreement. They made clear that in Texas –
1. "When 'a person [who] is under a duty to disclose material information refrains from doing so, and thereby leads another to contract in reliance on a mistaken understanding of the facts, the resulting contract is subject to rescission due to the intentional nondisclosure.'"
2. "A duty to speak arises from a fiduciary or confidential relationship or where a person is 'by force of circumstances,' under a duty to speak."
3. "The duty [to speak] exists where the parties to a mediated settlement agreement have represented to one another that they have each disclosed the marital property known to them."
4. "When one voluntarily discloses information, he has a duty to disclose the whole truth rather than making a partial disclosure that conveys a false impression."
In short, entering into a Separation Agreement can be dangerous. You are essentially creating a document that may cause you problems if it is enforced and problems if it is later found to be unenforceable.
What Else Can Happen
Bad Things can happen if you separate but fail to get a divorce. Here are some of the most significant hazards:
1. Presumed Fatherhood.
Suppose a man and woman are married and then separate, without getting divorced. In that case, any children born to the woman have the man as the Presumed Father of the Child. The children born are Children of the Marriage.
What does that mean? Well, it means that the mother may seek child support from the father, for one thing. No law says that child support can only be sought after divorce. A mother that is married to a father can seek child support. For that matter, a presumed father could seek possession of the child and child support from the mother.
The Paternity of the Child, that is, who the real father is, can certainly be worked out, but it may take litigation. There is a chance that it could be reasonably simple, agreed to litigation, or it may be a battle. In any case, it can involve courts and Judges, and in all likelihood, lawyers. Although it's possible that it could all get worked out with the filing of some paperwork – if the biological father agrees –it's also possible that it turns into a ridiculous fight over things that could have been taken care of easily, had the married couple not simply separated.
All of it could be avoided by getting a divorce, if the parties are not going to live together as man and Wife anyway. The divorce puts an end to the time during which children born to the woman are the presumed child of the man. And the end of that period is 301 days after the end of the marriage, which is the date of divorce, not the date of separation.
In 2018, in a case known as In the Interest of JEP, the Dallas Court of Appeals did an excellent job of laying out the law regarding Presumed Fatherhood and Paternity. They said,
1. "A man married to the mother of a child born during the marriage is presumed to be the father of the child." Tex. Fam. Code Ann. § 160.204(a)
2. "When unrebutted, this presumption establishes the parent-child relationship between the child and the man presumed to be the father." Tex. Fam. Code Ann. § 160.201(b)(1)
3. "A man who is a 'presumed father' is recognized as the father of the child 'until that status is rebutted or confirmed in a judicial proceeding.'" Tex. Fam. Code Ann. § 160.102(13)
4. "This presumption may be rebutted only by (1) a proceeding to adjudicate parentage under the Texas Family Code, or (2) the filing of a valid denial of paternity by the presumed father in conjunction with the filing by another person of a valid acknowledgment of paternity." Tex. Fam. Code Ann. § 160.204(b)
5. "When a child has a presumed father, the rule is that a proceeding to adjudicate parentage must be commenced 'not later than the fourth anniversary of the date of the birth of the child.'" Tex. Fam. Code Ann. § 160.607(a)
6. "However, 'a proceeding seeking to adjudicate the parentage of a child having a presumed father may be maintained at any time if the Court determines that:
(1) the presumed father and the mother of the child did not live together or engage in sexual intercourse with each other during the probable time of conception; or
(2) the presumed father was precluded from commencing a proceeding to adjudicate the parentage of the child before the expiration of the time prescribed by Subsection (a) because of the mistaken belief that he was the child's biological father based on misrepresentations that led him to that conclusion.'" Tex. Fam. Code Ann. § 160.607(b).
7. "The party seeking to avoid the limitation [to adjudicate parentage] bears the burden of proving a provision that would toll the statute of limitations."
If you put all of that together, what it tells you is that you do not want to be on any side of a situation in which you have to argue over who the parents of a child are, if you can help it.
2. Spousal Maintenance (what many people refer to as Alimony) May Increase Due to the Passage of Time.
It remains true that Texas does not have Court Ordered Alimony. It does have Contractual Alimony. And it also has something very similar to Alimony, known as Spousal Maintenance, which can be ordered by the Judge.
Spousal Maintenance is governed by Chapter 8 of the Texas Family Code.
In part, Chapter 8 details that there are things that can occur during a separation that could give rise to Spousal Maintenance when there may not have been any warranted at the time of separation.
If, for example, a spouse from whom you are separated becomes ill, and thus unable to work and support himself or herself, they may be entitled to see Spousal Maintenance. Tex. Fam. Code § 8.051 ("Eligibility for Maintenance")
Whether the ill Spouse gets Spousal Maintenance may well turn on how well you've done financially during the separation. If your Spouse is not well off financially, and ill, and you are well off and in good health, it is more likely that the Court would find that your Spouse is entitled to Chapter 8 Maintenance.
Once the Court decides that Spousal Maintenance should be paid, the next question is: How much? In Texas, the answer to that question can depend, in part, on how long the marriage has lasted – not how long it lasted until separation. Tex. Fam. Code § 8.052 ("Factors in Determining Maintenance"; "(3) the duration of the marriage")
The longer the marriage, the higher the maximum amount of Spousal Maintenance available. In fact, if the marriage is short enough, the Court cannot award Spousal Maintenance, even if it wants to, unless there is a debilitating injury or illness.
Generally, according to Tex. Fam. Code sec. 8.054 (Duration of Maintenance Order), the maximums for Spousal Maintenance are as follows:
The lesser of $5,000.00 per month or 20% of your Gross Income for a period of –
Five years – if the marriage has been more than 10 years and less than 20 years;
Seven years – if the marriage has been more than 20 years but less than 30 years; and
Ten years – if the marriage has been more than 30 years in length – including separation.
Moreover, if the Spousal Maintenance ordered is because of the disability – physically or mentally – of the Spouse or a child of the marriage, the payments can be ordered for life.
3. You Continue to Accumulate Community Property.
This one you may be able to change with a Separation Agreement. But, short of that, the presumption is that all property acquired by either party to a marriage is community property. By "all," the law means "all."
As discussed above, though, you may think that you've solved this problem with a Separation Agreement only to find out later, when a huge amount of money is involved, that the Separation Agreement is invalid.
The money you are saving in your retirement account is community property, regardless of whose name is "on the account," if it acquired during marriage – assuming that there is no valid Premarital or Post Marital Agreement to the contrary.
That means, if you separate, and stay separated but married for 25 years, all of the money you have been paid, and all of the things that you purchased with that money, and all of the money that you have saved from that money, is Community Property.
For a little bit of good news: Community Property does not mean that it is owned 50/50. But the bad news is that it is all subject to division by the Court, if and when you and your Spouse ever do get divorced.
In the 2001 case of Wilson v. Wilson, the Fort Worth Court spoke specifically to this issue.
In Wilson, the parties were married in 1968 and separated in 1990. A divorce was filed in 1998, and the case finally went to trial in 2000.
The Appellate Court stated,
"Because the Wilsons were still married even after their separation in 1990, the property they continued to acquire between the date of separation and divorce was still considered community property, unless either spouse could establish that the property was separate property under section 3.001" of the Texas Family Code.
Section 3.001 is very clear. For something to be Separate Property, it has to fall into one of the following categories – if it doesn't, and was received during marriage – it's Community (unless there is a Premarital or Post-Marital Agreement):
"A spouse's separate property consists of:
(1) the property owned or claimed by the Spouse before marriage;
(2) the property acquired by the Spouse during marriage by gift, devise, or descent; and
(3) the recovery for personal injuries sustained by the Spouse during marriage, except any recovery for loss of earning capacity during marriage."
Moreover, the other time Community Property gets divided – at death – is different, and potentially much worse.
Let's say that you separate and stay separated for 20 years. During that time, supposed you accumulate $1 Million in the bank, based upon your earnings. You then hear that your Spouse – whom you have not lived with in 20 years – has died. You will lose $500,000.00 of that $1 Million, by operation of law.
Why? Because the Rule in Texas is that Death Works a Partition.
What that means is that upon the death of either party to a marriage, the Community Property of the Decedent (the one who dies) is chopped in half. Half of it goes to the Estate of the Decedent, and half goes to the living Spouse.
You may be thinking that the Rule doesn't apply in this case, because it's not the property "of" the Decedent, it's "your" money. No, it's not. In Texas terms, it's "ya'll's" money. The money in your account is owned, in part, by the Spouse that you are separated from.
4. You Can't Get Married Again.
With respect to the scenario described above, you may be thinking: "It can't be my ex's money, it's my new wife or husband's money."
That's just it. You can't have a new wife or Husband if you are still married to your old one.
You remain married until you divorce or one of you dies.
So, what happens if you didn't know that and "got married" anyway. Well, you have some problems. Your second purported marriage is invalid. What does that mean for property acquired during it? There is a mess.
You would think that in this day and age, this type of thing can't happen.
"Surely there's a clearinghouse for who's married and who's not," you may think. "Somewhere, there must be a government database that says who is married and whether they are divorced."
Marriages are a matter of State Law, but those from one State are recognized in the other States. Moreover, people can get married overseas.
Add to that the fact that Texas recognizes Common Law Marriages, and you can easily see how people can be married but yet the County Clerk being asked to issue a new marriage license doesn't know it.
Then you have divorces and deaths. There is no 100% reliable database for those either, so there's no way to know for certain whether someone saying that they are eligible for a marriage license is telling the truth or not.
If you want to know how crazy things can get, consider the facts of In re the Estate of Loveless, a 2001 case out of Texarkana.
Loveless involved a situation in which a husband was killed in an automobile accident and two wives or former wives or whatever they actually were fought over his Estate. The first Wife claimed that although they had been divorced, she and Mr. Loveless got remarried in another country, but later separated without obtaining either a divorce or annulment. The second Wife said that Mr. Loveless and his first Wife never remarried; therefore, she was the real Wife.
The case went to Court, and the Court granted a Judgment for the second Wife. The first Wife then appealed. The Appellate Court found that the Trial Court had improperly granted the Judgement to the first Wife and sent the case back to the Trial Court for further proceedings.
None of that is cheap.
The Court stated, in part, that:
"A marriage is void if it is entered into when either party has an existing marriage to another person that has not been dissolved by legal action or terminated by the death of the other spouse." Tex. Fam. Code § 6.202(a) ("Marriage During Existence of Prior Marriage")
5. You Risk Being in Debt and Financially Responsible for Things That You Can't Control.
Being in debt for unexpected things is just part of the deal with getting married. All jokes aside, any thinking person understands that they may become liable for some of their Spouse's bills by getting married. Most people don't understand the intricacies of the law on all of the financial responsibility. Still, they know intuitively that there is some risk.
Suppose a man and woman get married, and the woman becomes ill. In that case, the Husband probably expects that he is liable for any medical bills that may come along.
The legal reason for that is the concept of Necessaries. That's a word that sounds like what it is. Most of us would use the word Necessities, but that's not the legal term. The legal name for items for which both Spouses are automatically financially responsible is Necessaries.
Necessaries include, among other things, food, shelter, and medical expenses.
If your Spouse, whom you're living with, incurs $40,000.00 in medical bills, you may expect that you owe it just as he or she does.
The problem is, the same is true even if you don't live with them.
If you are married – even if you have not seen your Spouse in a decade – and your Spouse incurs $100,000.00 in medical expenses, you are liable for it.
You can be sued for it. You can lose property because of it. You could be forced into Bankruptcy because of it.
One of the problems with the concept of Necessaries is that it is still being refined to this day. There apparently is no exact definition to it.
As recently as 2013, the Texas Supreme Court stated,
"We have suggested that a spouse's necessaries are things like food, clothing, and habitation — that is, sustenance…"
Moreover, in the 1939 case of Corbett v. Wade, a case that pre-dated the Texas Family Code Sections dealing with Necessaries, the Galveston Court of Appeals stated:
"It has always been the law in Texas, as elsewhere, that a husband is liable to a third party for the reasonable value of necessaries furnished his wife…"
In Corbett, the Husband and Wife were separated. During the separation, the Wife became gravely ill. She needed extension medical care – including in-home nursing – to get back to health. The adult daughter of the Wife from a previous relationship paid the nurses to care for her mother. After that, she sued her step-father – the Husband – to recover the cost of the nurses. The Stepdaughter won.
The Galveston Court stated:
"Where the Wife is not at fault, it makes no difference whatever that the parties have separated. Black v. Bryan, 18 Tex. 453, where the Court says: 'The rule that it is the duty of the husband to pay for necessaries for the wife, separated from him without her fault, applies as we see, at Common Law even, where all the property belongs to the husband; but, under our system, she would be entitled, in many instances, to necessaries, although the separation may have been by her fault.'"
Although a 1939 case citing to an 1857 Texas Supreme Court case is a little confusing, the simple fact is that the law is much more straightforward now than it was then.
Now, we have the Texas Family Code, and it states this:
Section 3.201(a) states:
"A person is personally liable for the acts of the person's Spouse only if:
1) the Spouse acts as an agent for the person; or
(2) the Spouse incurs a debt for necessaries as provided by Section 2.501"
Section 2.501 states:
"(a) Each Spouse has the duty to support the other Spouse.
(b) A spouse who fails to discharge the duty of support is liable to any person who provides necessaries to the Spouse to whom support is owed."
So, the only questions now are: Are you married? and Was it a Necessary?
Separation has nothing to do with it.
And if you really want to get worried, consider this statement from Corbett,
"Clothes may, of course, constitute necessaries."
The Corbett case cites to a 1927 case known as Meredith v. Titche-Goettinger Co. in which a wife left her Husband and moved to Dallas from Rockwall. The Wife decided that she needed a nice suit for her new job that she was taking. She bought it on credit and later filed for divorce from her Husband.
The Husband didn't contest the divorce. But after the divorce was done, he was sued by the clothing store that furnished the suit to the Wife on credit – and he lost.
Whether you are a husband or Wife, the idea that you could be sued for clothing that your separated-from spouse purchases during an extended separation – let alone for all of their medical care – provides plenty of reason for sleepless nights.
The answer to all of this is straightforward. Make your Legal Life match your Actual Life.
If you are married and living together, that's fantastic. But if you are living your lives separately and have no intention of getting back together, you are taking on bigger and bigger risks with each passing day that you fail to get your Legal Life in order.
If you can save your marriage, save it. If not, you need to think long and hard before failing to do what is necessary to protect yourself legally.