Understanding homestead property division in Texas

With few exceptions, a homestead may not be sold, encumbered or conveyed by either spouse without including the other spouse on the decision. This is true regardless of whether the property is the separate property or communal property. However, it may be sold, encumbered or conveyed without a joinder if the homestead is altogether separate property and the other spouse has been declared mentally incapacitated.

There are other circumstances whereby a house may sell, provided that the homestead is separate property. It might be possible to petition for the right to sell the property without a joinder if the other spouse has disappeared. A petition may be granted if the other spouse has abandoned the homestead or has disappeared while serving as a military member or public servant of the United States.

If the house is community property, it may be sold, conveyed or encumbered if one spouse is declared mentally incapacitated. Once the declaration has been made, the competent spouse may sell the property without including the other spouse on the decision. A spouse may also petition to sell the house if the other spouse has disappeared or has permanently abandoned the homestead. The petition may be granted if the other spouse is permanently separated from the spouse filing the petition.

Properly dividing assets during a divorce can be trying and sometimes adversarial whether it is a complex property division case or a simple property division case. Therefore, it may be worthwhile to hire a family law attorney, who may protect a spouse’s property rights and increase the likelihood that the spouse receives a favorable settlement. Whether an agreement is reached outside of court or through litigation, the attorney may help strengthen the agreement against any potential future legal challenges.

Special circumstances that may arise in Texas divorce cases

In divorce cases in Texas, there may be special circumstances that a judge must contend with regard to property division. Even if a property was acquired while one party was living in another state, the property may be divided under Texas law. In other words, property that would have been considered community property if the spouse had been residing in Texas at the time acquisition would still be considered community property even if acquired outside of Texas.

Property that is exchanged for real or personal property while one spouse is domiciled in another state may also be considered community property in a Texas court. Furthermore, any property that would have been considered a separate property if a spouse had acquired it while residing in Texas would be considered a separate property if acquired in another state.

Income from wages, earnings or property may be considered a separate property if it is earned after Jan. 1 of the year in which the divorce action was commenced if the parties so agree. Money earned in any other year in which the parties were married for only a portion of them may be considered partial or fully separate property, again if there is an agreement in writing.

During a divorce, the issue of property division may become an emotional one. Those who are trying to protect their property may wish to talk to a family law attorney. An attorney may be able to advise a client as to what property may be protected and what property is not exempt from division. An attorney may also be able to explain the difference between community and separate property and how the law determines how to classify a given piece of property.