What If The Real Property Is Separate Property But Refinanced During The Marriage
If the real property was refinanced during the marriage, the real property will remain separate property. However, if both spouses names are on the refinance documents, it can be argued that the spouse who owns the real property has gifted 50 percent of the real property to the other spouse as their separate property.
Home Ownership In Texas
When a divorce decree awards the marital home or property to one spouse and that spouse fails to pay the mortgage, the other spouse becomes responsible even when the spouse living on the property was ordered by the judge to pay the mortgage.
In other words, a person can lose ownership and possession of property pursuant to a divorce decree and still be on the hook for the mortgage. Even worse, the mortgage company is not limited by a family court judges ruling that one spouse is alone responsible for paying the mortgage.
Is It Marital Property Or Separate Property
Before you can decide who gets the house in a divorce, there are a couple of basic questions you need to answer.
The first of these is who owns it. In most cases, both spouses will be able to claim a piece of ownership. But thats not always the case.
The cleanest of all scenarios is if you bought your home together during the marriage using money that you or your spouse made while married. In that case, your house is marital property so you and your spouse would each be entitled to 50% of the equity.
So, if you got married, bought a house together and its now worth $1 million, then you would each be entitled to $500,000.
But life and a division of the home in a divorce isnt always that cut and dry. There are a handful of states, such as California, which are governed by community property rules in a divorce. The vast majority are equitable distribution states.
In an equitable distribution state, property division is more complicated. Either you can reach an agreement with your spouse on how to divide assets, or a court will decide the matter for you.
Equitable distribution means that the courts will try to be fair when divvying up things, but that doesnt always mean that each spouse will receive 50% of those assets.
Complicating matters further is if one spouse owned the house before the marriage. If that spouse takes specific steps to keep the house as a separate asset during the marriage, then he or she will get to keep the house in a divorce.
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How Do You Transfer Ownership After Divorce
If one party is going to receive the home after the divorce, you might be wondering how to transfer ownership.
In your divorce decree, it should state who is going to receive the property as well as a detailed legal description of the property. On top of that, the final decree should state which party will now be responsible for covering all of the houses expenses.
When one party is awarded the house with the signature of a judge on the decree, the other party will need to transfer all of their interest in the property to the party that is taking ownership of the house. This is done by signing a Special Warranty Deed. This paperwork is required to be filed in the property records of the County Clerks Office.
How To Transfer House Title After Divorce Texas
Obtain a copy of the previous deed for the property. A new deed must be prepared in order for the divorce decree to be carried out. The new deed must be recorded in the city or countys land records. You can show ownership if you keep a copy of the recorded deed.
If you divorce, you must divide that asset according to the terms of your settlement. Before beginning the transfer process, you should confirm who holds the title to the property. When dividing real estate in a divorce, there will be differences and nuances. In the divorce process, you have several options for transferring ownership of property. By changing the deed, you can change the person who owns the property. In a marriage, there is usually a shared title to a property between the couple. If a marriage is being transferred before a divorce, the spouse will be designated as married man/woman.
If their divorce had lasted at least two years, ex-spouses can deduct capital gains of up to $250,000 from their taxes. The title transfer does not transfer the mortgage. There can be no absolute, correct, or objective answer to this question. You must have a lot of trust in your spouse in order to have this type of trust. A divorce that is mutually acceptable may allow you to move ahead with your life before a divorce is finalized. You lose the opportunity to exert powerful negotiating leverage in bad negotiations.
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Sell The Home And Split The Equity
If neither party to a divorce wishes to remain in the home then the house can be sold and the proceeds from the sale split according to the courts order or the parties own agreement. This is especially common in older divorcing parties whose children are already out of the home or in divorces where the parties never had children in the first place.
You will also see this sort of arrangement in divorces where neither party is able to afford the mortgage payments on their own once the divorce is finalized.
Again, this is an area where having an experienced Houston family law attorney can benefit you a great deal. It is difficult enough for two married persons to agree on how to put their home up for sale and all the steps that are required that lead up to this decision.
When the spouses cant even sit in a room together it is nearly impossible for them to agree on how to sell a home. A family law attorney can create language that becomes a court order on the guidelines to the sale of the home. This includes a timeline that must be followed and instructions on who will pay for what and how the proceeds from the sale will be distributed.
No : Will I Be Forced To Split Community Property 50/50 With My Spouse
Not exactly. Texas is not a 50/50 community property state. The Texas Family Code requires a just and right division of community property. Judges may divide 55/45 or 60/40 if they see bad behavior on one side, or if there are fault grounds , or if there is disparity in earning capabilities.
For example, if one spouse is a homemaker who didnt finish college and her husband makes a sizeable income, she might walk away with a larger share of the community estate, especially if adultery or cruelty by the other spouse is involved. On the other hand, if you have two spouses who make the same amount of money with no fault grounds, they may end up with a 50/50 ruling depending on other factors, Christine says.
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No : Do I Need To Have Fault Grounds To File For Divorce In Texas
No, you dont need to have fault grounds to divorce in Texas. Texas is a no-fault state, so if you want to get divorced, you can file on the ground of insupportability. No fault means that a spouse does not have to prove the other spouse did anything wrong in order to get divorced. You dont need to have grounds. However, some spouses will allege fault, which can affect the just and right division of community property .
Most of the cases we handle are no-fault divorces, where the petitioner alleges insupportability, which is defined as a discord or conflict of personalities. In other words, the two parties cant get along. The most common statutory fault grounds parties allege are adultery and cruel treatment, says Christine.
Texas Divorce : Property Division
In a divorce case, there is often concern over how the marital property will be divided between the spouses. Understanding how Texas approaches marital property and its division in a divorce can help simplify the process and relieve some of the stress that comes with not knowing what to expect during divorce proceedings. This article will provide insight into divorce laws in Texas regarding property and help prepare you to understand how marital property is divided and affected by the divorce process.y.
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Consult The Dallas Asset
Divorce isnt easy, and neither is the division of property that inevitably follows. To ensure that you get all of the community and separate property to which you are entitled, you need expert help. The Dallas asset-division attorneys of Orsinger, Nelson, Downing, and Anderson, LLP can provide that help. You can reach us at 273-2400.
Our talented Texas divorce attorneys also have offices in Frisco, Fort Worth, and San Antonio. Out of 100,000 lawyers in Texas, there is no other law firm that has more attorneys on the Thomson Reuters list of Top 100 Texas Super Lawyers. That means you can have confidence that you will be getting quality work on your behalf.
- 310 S. Saint Marys St., #2600
- San Antonio, TX 78205
- 2800 S. Hulen St. Suite 210
- Fort Worth, TX 76109
What Is My Role As The Client
You should be as informed and as involved in your case as possible. Educate yourself about the process of divorce. Read any and all emails, texts, letters or paperwork your attorney sends you. If you dont understand something, ask a question. Better yet, make a list of questions for your attorney, and ask them all in one phone call or email to save time, as most lawyers charge by the hour.
Your attorney should send you a copy of all the documents that are either sent between your lawyer and the opposing lawyer or filed with the court. Save these documents! Make a file in which to keep them, and bring the file with you each time that you visit your attorneys office, or at least the parts of your file the attorney asks you to bring or you want to talk to him/her about. Typically, a lawyer now will email you your documents so make an electronic file. Pay close attention to all court orders that are signed by a judge.
You should be totally honest with your attorney. Give all information about anything that even MAY be important in your case. This includes not only information that helps you but also all facts which might hurt your case. Chances are, your spouse or his/her attorney is going to find out about them anyway, so dont let your attorney be the last to know. The bad stuff is usually not as harmful as you think.
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What Happens To The Family Business In A Divorce
A divorce may wreak havoc on numerous aspects of ones life, especially if one or both spouses were involved in the family business. A business is viewed by Texas family courts as an asset. Assets must be divided during a divorce.
There are several different outcomes for the family business in a Texas divorce. In some cases, each spouse may continue to own the business after the divorce. In other situations, a judge may order the parties to sell the business and split its profits. Or, one spouse may buy out the other spouse to retain the business. In this scenario, the spouse that is being bought out may receive assets equivalent to the value of his or her share of the business.
Community Property In Texas
Under Texas law, all property that is real or personal acquired during the course of a marriage is considered community property and is equally owned by each partner. However, there are exceptions to this law.
If the property is acquired during the marriage by way of inheritance, as a gift, or as part of a personal injury settlement for injuries sustained by only one spouse, then the person who was given that property retains sole interest in it. Also, any property that was acquired either before the marriage or after the date of separation of the marriage is considered the sole property of the person who acquired it.
Texas law requires that community property be divided in a manner considered just and right. This means property must be divided equitably based on circumstances that a court may consider, including each spouses earning power, who has custody of any children, each spouses health, education, and other related issues.
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How Is Community Property Divided In Texas
Texans are known for their hospitality, and, for better or worse, the whats mine is yours mentality is what characterizes the splitting up of property in community property states. In other words, marital property in Texas is one in the same with community property, and community property is split 50/50 between the two spouses.
Unless it is written out and agreed upon that property obtained during a marriage is separate property, it is presumed that all property obtained during a marriage is community property.
So, in Texas, even though the divorced husbands name wasnt on any of the Corvettes paperwork, hes still entitled to half of the car it wouldnt qualify as separate property in a Texas divorce.
What Is The Average Cost Of Divorce In Texas
Every divorce is different, and some are more expensive than others. Some divorces may be resolved in just a few months and cost the parties a few thousand dollars at most. Other divorces may drag on for much longer and cost each party five figures.
In general, the more contested the issues are, the more expensive the divorce will be. It is difficult to give a precise dollar amount on how much a divorce will cost, because the answer largely depends on how long it takes to finalize the case. If several hearings, mediation, and a trial are necessary, it is much more expensive than a divorce in which the parties agree on all of the issues in their case.
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What Happens To A Mortgage In Divorce In Texas
Last Updated on August 15, 2022 by Benson Varghese
When a couple owns a home and the marriage ends in divorce, important decisions must be made about what to do with the home. One spouse may want to remain in the home, but who then makes the mortgage payment? There are several factors that come into play in determining what happens with the home, including credit rating, equity in the home, and how the home or property was financed and titled.
Is There A Way To Divorce Without Going To Court
If you and your spouse are able to work out many of the issues in your case, you will significantly reduce the amount of time you must spend in court. Even if you have an uncontested divorce, in which you and your spouse agree on all issues, at least one of you must go to court during the final hearing. However, there are a few courts that if everyone has signed the divorce decree the judges will not require a final hearing.
During the final hearing, the judge asks either one or both parties some questions about the agreement under oath. However, a final hearing is not an all-day eventit may only take a few minutes to answer the judges questions. Your attorney will make sure you are thoroughly prepared.
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Removing Name From Deed After Divorce In Texas
If the spouse wants his or her name removed from the title, the deed must be signed by an notary. This can be done by any number of people around the world. In order to be legally registered with the county clerk, a signed and notarized deed must be filed with the clerks office in the county where the property is located.
A home or other real estate purchased during a marriage is assumed to be community property and owned by both parties. In most cases, the ex spouses names must be removed from the deed after a divorce. The Divorce Deed, in most cases, is used as a Special Warranty Deed. Cash, certified checks, and money orders are accepted by the vast majority of recording offices. Because Quit Claim Deed transfers are not permitted in Texas, the transfer of real estate cannot be done. The property should be transferred as soon as possible following the divorce. If you are unable to locate your ex-spouse, you may be able to file a certified copy of your divorce decree.
Divorce decrees are rarely made available to the general public in the district clerks office. If you want to avoid keeping your divorce decree a public record, you should seek a Warrantiff Deed instead. If you have sensitive information that you want to keep private, make sure to keep it out of public records.
What If We Refinanced A House That Is Separate Property During The Marriage
If you refinanced a house that is separate property in your own name during your marriage, it will still be considered separate property during a divorce. That being said, if the refinance documents have both parties names on them, an argument could be made that the spouse that owns the house gave half of the house to their spouse as a gift. This would mean that each spouse owns half of the house as separate property.
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