Portrait of John K Grubb

Texas Divorce and Prenuptial Agreement

4550 Post Oak Place, Suite 201 • Houston, Texas 77027-3139

Phone: 713-877-8800 • Fax: 713-877-1229

What happens to real estate in divorce?

Houston couples often have extensive assets in real estate. They have homes or land before they marry and acquire more during the marriage. The property frequently becomes a contentious issue when the couples divorce.

Texas law is clear how real property is to be divided during a divorce.

Real Estate Separate Property

Separate property is defined as property you acquired while you were single. When you married your spouse, any real estate that you had prior to the marriage did not automatically become marital property that is jointly owned by your spouse.

This means that despite the threats of your spouse, he or she cannot take real estate purchased prior to your marriage. It doesn’t matter if improvements, such as renovation of a kitchen or baths or adding bedrooms or a swimming pool, were made to the property with community funds. The fact that you bought the property prior to the marriage with your own funds is what is important to Texas courts.

The only exception is a homestead. If you owned a house prior to your marriage, and when you married both you and your spouse moved into the house and filed a homestead exemption on the property, your separate property home became marital property. Texas goes to great lengths to protect a homestead for a family.

Real Estate Community Property

Community property is divided between divorcing spouses, and real estate is not an exception. This means that you and your spouse have joint equity in the house and it belongs to you equally.

Most of the issues that arise over the marital home stem from one spouse wanting to sell the home immediately whereas the other spouse wants to keep the home to raise the children or disagreements over the sales proceeds if both spouses want to sell the home.

If you want to keep the home to raise the children, the good news is that most Texas judges want the children to stay in the same house after your divorce. The drawback is that the Court will consider your ability to maintain the home. If the Court thinks you will not be able to do this, the Court will order that the home be sold. Similarly, the Court will order the home sold if the substantial portion of the marital assets is in the home.

While both parties agree to sell the marital home, what to do with the proceeds can become a bone of contention. An example would be where one spouse wants to use the proceeds from the sale to pay off debt, while the other spouse to use their share to purchase a new home. Texas homesteads are exempt from creditors for a 6 month period to allow people to sell and purchase a new homestead, and the Judge cannot order the proceeds to be used to pay creditors. This is an issue that must be worked through before the divorce settlement between the parties and their attorneys.

If you have extensive assets in real estate, it is important that you consult your Houston divorce attorney. There may be complicated concerns regarding the division of real estate in your case that only an experienced attorney can address.

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