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Legal Separation and Postnups


A common question asked by individuals seeking a divorce is whether they can legally dissolve the marriage while still living together. The short answer is yes, because Texas law does not require the couple to separate before or during divorce proceedings. Indeed, a divorce may be finalized while the couple is still living together in certain circumstances.


Still, many couples find themselves wishing to separate before a divorce proceeding has begun. Texas law does not recognize mere separation as a method of dissolving the marriage, however. Texas law only recognizes the processes of divorce and annulment to dissolve valid marriages (death of one spouse is a valid method of dissolution as well, though it’s not a legal procedure). While living apart, you and your spouse will remain married until the marriage is dissolved by divorce or annulment. However, this could be detrimental to the assets of one or both parties. Additionally, there can be disagreements over asset and debts. In this event, a postnuptial (“postnup”) agreement can help make the process of splitting up smoother. It’s important to note that while most people use the term postnup to describe post-marital agreements and prenup to describe pre-marital agreements, Texas law does not. Texas law only recognizes the terms “marital agreement” and “pre-marital agreement.” For clarity, this post will describe marital agreements as postnups.


A postnup functions in essentially the same manner as a prenuptial (“prenup”) agreement. Most people have heard of a prenup and are familiar with the idea of protecting parties’ assets before entering into a marriage. Just as well, a postnup agreement is designed to protect the parties’ assets once the marriage has ended. Unfortunately, issues of child support and child custody cannot be included in the postnup agreement under Texas law. In short, this is because it’s against public policy for a judge to not conduct a “best interest of the child” analysis in the majority of cases. The only time this analysis doesn’t occur is when a mediated settlement agreement has been reached. However, issues of pet custody may be agreed to in either a prenup or postnup agreement. See our post on petnups for more information.


So, what would you include in a postnup agreement? Anything you feel is necessary to secure your assets. You may want to include provisions that protect inheritance rights for your children, or include language that prevents either spouse from incurring the debts of the other. Like a prenup agreement, a postnup agreement is highly customized to you and your spouse.


Consulting an attorney will help you ensure your postnup agreement accurately reflects your wishes, and ensure that it conforms to Texas law. There are certain conditions that must be met for a postnup agreement to be valid, and it’s difficult for a non-attorney to know how to satisfy those requirements. Your attorney can help you come up with a plan that works for your family, and advise you on what’s appropriate to include.


As with any legal document, don’t try to draft it yourself. Be sure to consult with a family law attorney—it will save you time, money, and headaches. You can contact our office anytime using our website’s chatbox, or by filling out the contact form at the bottom of the page. You can also give us a call at (512) 944-3329 during our business hours.

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