If you and your spouse are in the preliminary stages of going through a divorce in Texas, you may have questions about how to make arrangements for the day-to-day living situation.
Let’s say that you and your spouse have decided to separate, but you’re not quite ready to divorce yet. One of you lives in the family home, but the other spouse wants to buy a new one. Can you do this? How does it work? Consider the following information about the process of buying a house after separation before divorce in Texas.
What Are the Legalities of Separation in Texas?
While other U.S. states may allow for a court order or a separation agreement to stipulate the terms of the marriage after the date of separation, Texas does not recognize legal separation.
Even if you and your spouse have decided to live apart, you are still considered married in the eyes of the law. This distinction can have significant implications regarding property division during divorce, especially if you plan to buy property before the divorce process is completed.
Because you are legally married, any real estate purchased during this time may be considered joint marital property if you do not take precautionary measures to protect yourself. Take note that if you buy a new house while “separated,” your spouse could technically still claim ownership of half the property in a property settlement.
If you’re considering buying a new house while separated from your spouse, you should understand the legal implications first. With careful planning and protection of your assets, it is possible to do so without risking your divorce.
Implications of Buying a House After Separation
If the home is in your name only, your spouse may still be entitled to half the value of the home if you get divorced. The reason why your spouse could be entitled to half is that Texas is a community property state. In other words, under Texas law, all property acquired during the marriage is considered joint property, regardless of whose name is on the title.
This scenario could play out in several ways during your divorce. Consider two common situations:
1. Your spouse could demand that the home be sold, and the proceeds split evenly between you.
2. If you can’t afford to buy your spouse out, your future ex-spouse may be awarded the home in the divorce settlement in exchange for giving up other marital assets.
Of course, this is all contingent on the specifics of your divorce, and exceptions may apply to your unique case. For example, if you have a prenuptial agreement that protects your assets, then the home you purchase after separation may be considered separate property.
Find Protection if Buying a House After Separation Before Divorce
While you can’t protect your assets 100%, there are some steps you can take to minimize the risk of losing half the value of your new home in a divorce settlement. However, both parties must agree to these measures for them to be legally binding.
1. One option is to sign a postnuptial agreement. This agreement is similar to a prenuptial agreement, but it’s signed after you’re married. This document outlines which assets will be considered separate property when the divorce is final.
For instance, you could stipulate that any property purchased after signing the postnuptial agreement will be considered your separate property because it will be your designated home after the divorce is finalized.
2. You may also be able to sign a partition and exchange agreement. This agreement allows you and your spouse to designate certain pieces of property – such as your new home – as separate property. As a result, your spouse would have no claim to this property in either marriage or divorce.
3. If you are unable to reach an agreement with your spouse, you may be able to protect your assets by keeping the property in a trust. This way, the property is technically owned by the trust and not by either you or your spouse individually. You will need to work with an expert attorney to navigate these waters if you choose this option.
Other Considerations for Buying a Home During a Divorce
Before you purchase a new home after separation, there are a few other things to keep in mind. For one, you’ll need to be able to apply for the mortgage on your own. If you intend to own and finance the home independently, your spouse’s income can no longer be used to help you qualify for the loan.
You should also be prepared for the possibility that your spouse could try to disrupt the sale. If they don’t want you to buy a new house, they may try to stall or block the sale in some way. It’s important to be aware of this possibility and have a backup plan in place.
Buying a House While Separated: Proceed With Caution
While it’s possible to buy a new house while separated from your spouse, there are some risks involved. Be sure to understand the legal implications and take steps to protect your assets before moving forward with the purchase.
The safest way to move forward with the purchase is to work with a qualified divorce attorney. The right divorce lawyer can help you understand the risks involved and ensure that your best interests are protected before, during, and after your divorce proceedings.
Find Support from an Expert Family Law Attorney
When you turn to my law firm, I will make sure you receive the necessary legal protection during a divorce. I will walk you through asset-based issues to help you avoid exposing yourself to an unfavorable divorce outcome.
I’m here to help you make an informed decision about buying a house after separation before divorce that fits your unique circumstances. I encourage you to contact my office today to discuss your case.
I currently help spouses in Fort Bend County, Brazoria County, and Harris County with the legal divorce process. If you live in one of these counties, call my offices at 281-944-5485 or 979-267-7660 to discuss your divorce. Let’s get to work protecting your assets.