By John K. Grubb, Attorney
5005 Riverway Drive, Suite 450
Houston, Texas 77056
713-877-8800

1. My spouse and I are in the middle of a divorce.  I want to sell the house right away and my spouse does not.  Can the Judge order that the house is sold before our divorce is final? 

Normally a Judge will not order that a house is sold while a divorce is pending.  There are a number of different reasons for this.  Most of the reasons have to do with the fact the Judge does not like to make decisions without hearing all the facts. Until the final hearing, the Judge does not know all of the facts about the case. 

2. I owned a house 5 years before I got married.  My spouse and I have lived in it as our homestead for the last 5 years.  I want to sell it, but the title company says my husband has to agree and join in the sale.  Why can’t I sell my separate property house? 

In Texas, you can sell any real property that is your separate property without the joinder of your spouse, except for the homestead.  The reason for this is that Texas places great importance on protecting a homestead for a family.  

3. I owned a house before marriage and I want a divorce.  My spouse is telling me that if I divorce him/her, they will take my house away from me.  Is that possible? 

Not going to happen.  The house is your separate property and in Texas, a Court cannot divest you of your separate property. 

4. I owned a house before we got married.  While married we added a new master bedroom, a gourmet kitchen, and a swimming pool.  We are now getting a divorce.  On some days my spouse says that, since we rebuilt a big portion of my house, it is now community property.  On other days my spouse says he/she is entitled to something for all the improvements.  What is the story? 

The house is your separate property since you owned it prior to marriage.  Texas follows the inception of title rule – the character of the property is determined when the title was first acquired.  Since you were single when the title was first acquired, the property is your separate property and it did not become community property just because improvements were made – even if the improvements were made with community money. 

Your spouse may be entitled to something because of the improvements that were made during the marriage if they were made with community money or credit. 

5. When I got divorced, I did not want to fight so I just gave up my interest in the house to my ex.  There really wasn’t any equity in it.  The mortgage company is now calling me saying my spouse is behind on the payments and I am obligated to pay them.  Do I really owe the mortgage company for a house that my ex-owns? 

Surprise!!! You do.  When you and your ex initially went to the mortgage company, you both made a promise to pay the mortgage company the full amount of the mortgage. No divorce Court can cut off the mortgage company’s right to look to both of you for payment.  If you had an attorney during your divorce, then your attorney would insist at the time of divorce that your spouse sign a Deed of Trust to Secure Assumption, providing that you could foreclose on your ex’s interest in the house if they do not pay the mortgage. 

6. I am getting divorced and I really do not want the house, but my spouse does.  There really is not any equity in the house.  I want my soon-to-be ex to refinance the house so that I can by another house as soon as I get divorced.  Will the Court require my spouse to refinance the house? 

Not normally – the Court cannot be assured that a lender will agree to loan your ex-spouse money in the future. 

7. My spouse and I have 2 children, 11 and 14 years old.  We are getting divorced and I want to stay in the house until my youngest child reaches 18.  My spouse says he/she wants their equity now.  What is the Court likely to do? 

What the Court is likely to do is entirely dependant upon the specific facts of your case.  Most Judges like to see children stay in the house they’re accustomed to after divorce if it is possible.  If the Court thinks you are not going to be able to maintain the house, then the Court may order the house sold.  If the Court finds that virtually all of the community estate of the parties is in the house, then the Court is more likely to order the house be sold.  If the Court finds that there are other community assets that the Court can award to your spouse, then the Court is more likely to award you the house – but keep in mind, it likely comes along with the remaining mortgage balance, if any.  As I pointed out, the Court’s decision is driven by specific facts.  

8. My spouse and I are going through a nasty divorce.  The one thing we can agree upon is that the house should be sold right away.  What we cannot agree on is what to do with the sales proceeds.  What do we do? 

This is a common problem.  Frequently the parties can agree that money be held one half in each attorneys’ trust account until the Court makes a final ruling on who gets what.  The Court can also order that the money be deposited into the registry of the Court during the pendency of the case, or until the Court makes a ruling. 

9. My spouse and I have agreed to sell the house.  My spouse wants to use the proceeds to pay off our credit cards and other debts that we have accumulated. I want to use my share to put as a down payment on a new house.  What is the Court likely to do?
In Texas, a homestead is exempt from creditors.  When a homestead is sold, the proceeds from the sale of the homestead are exempt for 6 months. This is designed to allow people to sell their homestead and buy a new homestead.  A judge cannot order that the proceeds from the sale of a homestead can be used to pay creditors (other than the mortgage company). 

10.My mother gave me $100,000.00 as a gift, which I used as a down payment on a $400,000.00 house.  My spouse and I borrowed the other $300,000.00 from the mortgage company, and we still owe $250,000.  The house is now worth $750,000.00, so we have about $500,000.00 in equity.  My spouse says he/she gets half of the equity, or $250,000.00.  I think I get my gift money back, and then we divide the remaining $400,000.  What is the Court going to do?   

The Court has several different ways to handle this.  Since the $100,000.00 was a gift from your mother, it is your separate property and the Court can provide you are to get your gift back, and then remaining $400,000.00 is to be divided between you and your spouse.  Another option, is for the Court to find that the house was acquired with $100,000.00 of your separate property and $300,000.00 of community credit and decide that total equity in the house should be divided 1/4th to you as your separate property ($125,000.00), and the other 3/4ths is community property to be divided between you and your spouse. Your spouse is wrong – the Court is going to recognize your separate property that was used to buy the house.  

11. My ex-spouse and I did our own divorce 20 months ago – we really saved a lot of money by not using attorneys. My spouse let me have the house; the divorce decree does not say anything about the house because we used an online form and it did not have a place to put in anything about the house.   I have paid every house payment, plus the taxes, and insurance, on time since the divorce was finalized.  I decided to sell the house, put a for sale by owner sign out front, and the very first day a couple came along and agreed to pay me what I wanted for the house.  I made a bunch of money on the sale.   I really saved a big real estate agent’s commission by doing my own sale.  Now the title company is telling me I don’t even own the house and in order to sell it, my ex-spouse will have to sign the papers.  Surely that cannot be true. He is a jerk and wouldn’t do that; besides I do not even know where he lives now. And the buyer is threatening to sue me if I don’t close right away.  Isn’t the title company wrong? 

Remember that old English warning against being “penny wise and pound foolish”? The title company is right.  Your spouse is still an owner of the house; the house is undivided community property.  You may get sued by the prospective purchasers.  You will have to hire an attorney to initiate Court proceedings to divide any undivided community property.  Further, you or your attorney will probably have to hire a private investigator to locate you ex spouse.   

12. My spouse and I have been married 23 years, and have 2 children 14 and 16 years old.  I gave up my career when the children were born.  I also helped my spouse with their career and now my spouse makes $600,000.00 per year.  Our biggest asset is a house that we own free and clear, and which is worth about $1,000,000.00.  We have agreed to sell the house, because I cannot afford the upkeep.  My spouse says the equity in our home is community property and I get one half and he gets one half.  Is that true? 

He is wrong. Texas divides community property in a “just and right” manner. There are about 15 factors that a court can take into account in dividing community property. In a situation similar to this, it is not uncommon for the Court to award a disproportionate share to the non-working spouse. 

13. My spouse moved out and I have filed for a divorce.  I found a great townhouse I want to buy; the mortgage company says my spouse has to sign the mortgage.  Why? 

In Texas, you are still married until a judge actually grants a divorce. Many people assume that, once a divorce is filed, they are free and can do what they want to without regard to their soon-to-be ex-spouse and the Court. 

14. My spouse and I bought a house together before we got married.  We have been married 10 years and have two children, ages 8 and 6, are now involved in a messy divorce, and I want the house.  My spouse is telling me that the house is not community property and the Court cannot give me the house.  Is this correct? 

Your spouse is correct. Any property owned by a spouse before marriage is their separate property, and a divorce Court cannot divest a party of their separate property. The house is one-half your separate property, and one-half your spouse’s separate property. 

If you have questions about real estate and divorce, contact John K. Grubb & Associates, P.C.