If you are looking at a divorce in Texas, you should know that Texas is a community property state. This basically means that the property that you and your spouse have acquired over the years belongs to you both equally. It is important to know what this means for you before opening up proceedings to divorce your spouse.
Real estate law in Houston, Texas involves legal disputes over land, real property, and improvements on real property. Real property is land and any existing permanent structures or buildings that are on the land.
Real estate can be owned by multiple parties, corporations, single individuals and utilized as a rental property or have rental arrangements. Sometimes in a divorce, property rights can be clouded by when it was bought and how it changed hands.
There are processes and guidelines for transferring title and disputing title, but in a divorce, there is a level of proof you must have to claim that real property belongs to you alone and not to you and your spouse together.
Your Own Property
Before you are married, you have property that is yours. After marriage, this same property owned or claimed by you is still only yours. Other real property that remains yours alone includes:
- Any property that you received during your marriage as a gift
- Real property that you received from a will or as an inheritance
Community Real Property in Marriage
Real property possessed by either you or your spouse during your marriage or when the divorce actually occurs is presumed to be community property. This means that any homes or land (real property) that you purchase during your marriage legally belongs to the both of you.
If you bought a hunting cabin in your name only, it is still communal property unless you can prove with clear and convincing evidence that you bought it using separate assets owned in your name only.
The same principle applies if you bought a house together. According to TexasLawHelp, “Any real property that was purchased during the marriage is considered community property even if only one of the spouse’s names is on the deed. What matters is that the title to the property was acquired during the marriage.” (1)
If you want to prove something is your property alone, you must have clear and convincing evidence that the property is separate and belongs only to you based on the definitions of personal property defined above.
Within the marriage, real property can change from community to separate property or vice versa. Community property may become separate property owned by one spouse through:
- a gift
- a sale for a separate property consideration
- a partition or exchange entered into either before or during marriage
Separate property may become community property owned by both spouses by:
- sale for a community property consideration
- by mixing in with community property in such a way that it cannot be traced
Ideally, before filing for divorce, look at whether you can trace the ownership of your separately owned property with a clear and convincing level of evidence. If not, work with a real estate property attorney to secure your rights before entering into a divorce separation period.
During the Divorce
If you show up at divorce court without having made some type of agreement with your spouse beforehand, the court will make a decision about your assets, including real property.
In a decree of divorce or annulment, the court orders a division of all assets and property in a way that the court deems just, while considering the rights of both spouses and any children of the marriage. Possible scenarios for real property distribution include:
- Communal real property such as the family home is sold and spouses divide the income equally
- One spouse keeps the property and the mortgage and gives the other spouse half of the equity
- One spouse keeps property and gives the other spouse assets to offset the value of the house
Real Property Considerations
If your spouse is keeping real property that has a mortgage in your name also, make sure to work out with the court how long your spouse has to remove your name from the mortgage. The spouse keeping the home must acquire a mortgage in their own name based on their own income and assets. Usually this is done as a refinance. This may take some time, but needs to be a legally agreed upon amount of time so that it can be enforced later if necessary.
A spouse keeping a home with the other spouse’s name on the mortgage could become a major liability if the spouse with the house gets behind on payments or goes into foreclosure. Make sure to have the spouse that keeps the house sign a “Deed of Trust to Secure Assumption” which states that they will continue to pay the mortgage until they can refinance the home under their own name.
If you work out an agreement beforehand concerning the division of your real property and the associated liabilities, it is common for the court to agree to the terms of your agreement. If the court agrees that your terms are just and right, the judge will approve your agreement. If the court disagrees, the judge may ask you to submit a revised agreement or may set the case for a contested hearing.
Fraud by a Spouse
If you have been wronged by a spouse who has defrauded you of real property that should be yours, you will need to prove this in a court of law. If the court determines that a spouse has committed actual or constructive fraud, the court will award you an appropriate share of the estate remaining after the actual fraud.
If you are having a real property dispute with a spouse, suspect real estate fraud, or want to get your estate in order before filing for a divorce, talk with an experienced real estate property attorney who knows the laws regarding community property. A counselor who understands the Texas laws about community property can make sure you are doing everything to receive a fair settlement of real property in your divorce proceedings.
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