Divorce is not necessarily always the answer for a couple who is struggling in their marriage. Sometimes a period of separation to allow the parties some space and time away from one another can be a powerful tool in preserving a marriage. Often people may want or need some time apart to heal and to consider the root of the marital difficulties. A period of separation can also remind individuals of why they married their spouse in the first place. However, a period of separation can be difficult to achieve for a couple with children, community assets and community debts. How can couples contemplating separation protect themselves?

Texas recognizes Marital Separation Agreements, also known as property settlement agreements. These agreements can reach all the important issues within a marriage such as: dividing property, clarifying parenting rights, and making alimony and custodial arrangements. A marital separation agreements is a contract between the parties that clearly defines the rights and obligations of each party during the period of separation. The fact that this document creates a contract gives each individual an enforcement right with respect to the terms of the agreement. Thus, party interests are protected through the use of a marital separation agreement.

If the separation period is unsuccessful in bringing the couple to reconciliation and divorce becomes the only option a good marital separation agreement can streamline the divorce process. The separation agreement can provide the court evidence of when the parties actually separated. The agreement can also be the basis for the division of property, debts, parenting responsibilities, and custodial arrangements. The benefit is that the court can better recognize and give effect to the interests and desires of the parties.

There is no need for a marital separation agreement to be filed with the court for it to be effective. Also, a marital separation agreement may be entered into at any time. Therefore, there is no requirement that the parties enter into such an agreement before filing for divorce. It is possible that as divorce proceedings are ongoing the parties determine a marital separation agreement would help protect their interests as opposed to leaving everything to the discretion of the court.

Some provisions of a marital separation agreement are more important in some circumstance than in other circumstances. For example, a marital separation agreement can survive the divorce judgment as a separate contract, or it can be merged and incorporated into the divorce judgment. If the marital agreement remains separate it may only be modified through agreement of the parties (as with any contract). On the other hand, if the agreement is merged with the judgment it would be possible for a party to bring a court action to modify. Therefore, if the agreement only concerns custody and visitation of children, it would not make a difference if the marital agreement survives or is merged. However, if the marital agreement includes provisions for child support or spousal support it may be important that the agreement survive judgment.