Marriage Property Rights
Texas is one of nine states that is a community property jurisdiction. In general, this means that any property acquired by a couple during their marriage (with a few exceptions) is equally owned by both spouses. This can have a profound effect on the dissolution of property during divorce proceedings.
What is Marriage?
A formal union and social and legal contract between two individuals that unites their lives legally, economically, and emotionally.
A common law marriage is a “legal” marriage. The opposite of a common law marriage is a “ceremonial “marriage. Below are three of the common requirements for most states (note that just “living together” isn’t enough to validate a common law marriage).
- They live together;
- They hold themselves out to be married to each other; and
- They intend to be married to each other.
Community (and Separate) Property in Texas
When a couple chooses to “tie the knot” and marry one another, they may bring many material and monetary possessions into the marriage, especially when a couple marries later in life or after previous marriages. Often, a spouse will enter the marriage already owning a vehicle, a home, a retirement savings account, or other valuable items. The acquisition of possessions, however, does not end once the couple says, “I do.” Combining incomes can lead to the purchase of bigger homes, vacation properties, or small businesses. Additionally, either the spouse may inherit property or heirlooms, or money from parents, grandparents, or other family members. Yet, when a couple decides to untie the knot and file for a Texas divorce, all of the property brought into the marriage by the spouse and all of the property that the couple acquired during the marriage must be divided. In Texas, how the couple’s property is divided at the end of the marriage will depend upon how the property is classified. Is it separate property or community property?
HOMESTEAD; INVESTMENT; RESIDENTIAL; NON-RESIDENTIAL PROPERTY
Married – Who Must Sign?
Sale of Property:
- If homestead, both spouses must sign even if only one is vested with title and whether the property is characterized as separate or community property.
- If non-homestead, only the spouse that is vested with title, and we would require joinder of the spouse or a non-homestead affidavit.
- Sole-managed community property, the spouse vested with title can sign alone if both spouses sign a Homestead Affidavit designating a different property as their homestead.
Pending Divorce – Who Must Sign?
Sale of Property:
- Both spouses must sign even if only one is vested with title and whether or not the property is characterized as separate or community property.
- All vested owners must execute.
- Divorce filings must be checked to make sure that there are no court orders in effect prohibiting or limiting the sale or disposal of assets of either party during the pendency of the divorce action.
- Certifications from an attorney for the parties, if any, stating that there are no orders in effect that would prohibit the proposed transaction from closing.
During the pendency of a divorce action, the Family Court has jurisdiction over both spouses’ community and separate property. Even if the property to be sold would otherwise be considered separate property of the selling spouse (acquired prior to marriage, by inheritance or gift), both spouses must sign, or there must be an order entered by the Family Court specific to the articular transaction and sale of the property requirements and allowing the sale by only one of the spouses.
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