A separation agreement is a contract that modifies the rights and duties between spouses while they are living separately with the intent to remain separate but without the intent to divorce. In Texas, legal separation does not exist, but a separation agreement is used as a means to achieve what effectively would be a legal separation.

The incomes of both spouses are a part of the community estate. Generally, the most important provision in a separation agreement will stipulate that each spouse's earned income is the separate property of the spouse who actually earned it.

Spouses also have a duty to support each other as long as they are married. Living apart does not purge this statutory duty. A separation agreement allows the spouses to agree on terms regarding spousal support.

Parents have a statutory duty to support their children, including providing clothing, food, shelter, medical and dental care, and education. If a marriage produced children, a separation agreement should include provisions related to child custody, visitation, and support payments from one spouse to the other for the benefit of their children. However, such provisions must be in the children's best interests. Otherwise, the court may disregard those provisions and render its own support order.

Separation agreements are also used to foreclose a surviving spouse's right to inherit from a deceased spouse's estate. Typically, separating spouses would rather a child or other relative inherit from their estates instead of the other spouse. Provisions providing for the reciprocal release of a surviving spouse's rights to inherit are well-advised and common.     

Remember: because Texas does not recognize legal separation as a marital status, the spouses are still married unless they are granted a divorce. Therefore, a separation agreement needs to be very detailed and specific. Otherwise, the general rules of community estates apply.

If you are contemplating separation and would like to discuss drafting a separation agreement, please schedule a consultation today. Do not rely on this post as legal advice. This post does not create an attorney-client relationship between the Firm and the reader. Do not act in reliance on the contents of this post without seeking the advice of counsel.