Buying a House While Separated in Texas: Should You Do it?

Separating from your spouse can be an emotionally and financially taxing experience. Perhaps you and your spouse need space and time to work things out. Or, maybe you are in the middle of a divorce. You have heard that divorces take a long time, but you want to take steps to move on with your life now. You do not want to wait before you start anew and buy a home of your own.

Buying a house while separated in Texas can have many complications. While buying a house while you are separated may be possible, it’s probably not the ideal time to do so. It’s important to speak with a family attorney if you are considering buying a house after a separation or while your divorce is pending.

No Legal Separation in Texas

You may be thinking about buying a house after a legal separation. If you and your spouse have been living apart for some time, you may believe you are legally separated. Or, perhaps you are waiting to separate and are wondering, How long after a legal separation should you wait to buy a house?

In fact, there is no such thing as being legally separated if you are in Texas. Texas law has no legal separation. This means that even if you and your spouse have been living apart for months or even years, you are legally married until you finalize a divorce. This means that anything you buy will likely be community property—i.e., property of the marriage.

Your New Home May Be Community Property

Texas is a community property state. This means that both spouses jointly own all property acquired during the marriage, with few exceptions. Your paycheck, pension, and any real estate are probably community property. Suppose you buy a home while you are married but separated. In that case, the home legally belongs to you and your spouse, especially if you used community property (i.e., a joint savings account) to purchase the home. Your spouse could get half of this property in a divorce.

There are exceptions to the community property presumption. The property you acquired before your marriage is considered separate property. You may have money from before you were married that you’ll use to buy the home. Even though a court may eventually agree that this is separate property, your spouse could try to lay a claim on your home. You’d have to fight it out in court to prove that it is truly separate.  

Marital Property Partition Agreement

If you are considering buying a house while separated in Texas, one of the few ways you may be able to own it separately from your spouse is through a marital property partition agreement. The law permits you and your spouse to agree to convert community property into separate property. This means that you may be able to agree to treat specific marital property, such as money in a bank account, a car, or even a home, as separate property. 

Martial property partition agreements must comply precisely with the law to be enforceable. Texas law requires that this agreement is in writing, voluntarily signed by both parties. Plus, you must give your spouse adequate information about the property. You should speak with an experienced family attorney if you’re considering a marital partition agreement or if your spouse asks you to sign one.

Temporary Orders During a Divorce Prohibiting Significant Purchases

If you already have a divorce pending, you may not be allowed to make any significant financial changes, such as buying a home, due to a court order. In many Texas counties, such as Montgomery County, the court automatically issues a standing order as soon as you file for divorce. A standing order prohibits either party from doing certain things to disrupt the marital property, such as:

• Withdrawing excessive money from bank accounts,
• Selling or transferring any property,
• Damaging any property, and
• Taking on any new debt. 

You and your spouse can continue to use community money and property for your daily lives and regular expenses. However, this order limits a spouse’s ability to make significant financial changes. Taking on a mortgage or withdrawing money to pay for a new house is most likely prohibited under a standing order.

In Harris County, family courts do not automatically issue standing orders during a divorce. However, Texas law allows the parties to a divorce to ask for temporary injunctions or restraining orders prohibiting significant financial activities, just like a standing order.   

The court can hold you in contempt if you violate a standing order, restraining order, or injunction. Contempt is a crime punishable by a fine or jail.

It is possible to try to work out the purchase of a home with your spouse. If so, your attorney can ask the court to make a change or exception to the order. However, you should speak with a divorce lawyer if you consider buying a house after a separation but before the divorce is finalized.

Other Potential Complications

You will face additional complications if you want to buy a home before you finalize your divorce. Because you are still legally married, title companies and mortgage companies will follow the community property law. This means they will need your spouse’s signature for a mortgage and may even require a credit check from your spouse. 

Plus, you don’t yet know what your financial situation will be like after your divorce is final. You may not receive as much of the marital property as you think. Or, you may have more marital debt than you realize. Typically, the court divides up debt along with property during a divorce. You will not know exactly what you can afford until after the divorce is final.

Considering Buying a House Before Your Divorce? Contact Our Family Law Firm Today

If you are considering buying a house after a separation but before your divorce is final, you should immediately speak with an experienced family attorney. The Larson Law Office can help. Our firm can help negotiate a marital property partition and can represent you in your divorce. Contact us today for a consultation.