The house, the divorce, and a calm way forward

Texas Family Code 3.002 defines community property as property, other than separate property, acquired by either spouse during marriage. Under 3.003, property possessed by either spouse during or on dissolution of marriage is presumed to be community property.

Under Family Code 3.001, separate property includes what a spouse owned or claimed before marriage and what a spouse received during marriage by gift, devise or descent. Proving property is separate takes clear and convincing evidence (3.003).

Family Code 7.001 says the court divides the estate of the parties in a manner it deems just and right, with due regard for the rights of each party and any children. That standard is why outcomes vary from case to case.

Family Code 5.001 says that whether the homestead is separate or community property, neither spouse may sell, convey or encumber it without the joinder of the other spouse, except as the chapter or other law provides. In practice, title companies typically expect both spouses to sign, or a court order that authorizes the sale.

Under Family Code 6.702, a court generally may not grant a divorce before the 60th day after the suit was filed, with limited family violence exceptions. The house decision often has to be made during that waiting period or after.

Family Code 6.501 lets a court issue a temporary restraining order that can prohibit either spouse from destroying, concealing, encumbering, transferring or reducing the value of the parties' property to obstruct the court's division.

Under Family Code 6.502, a court may order things such as a sworn inventory and appraisement, exclusive occupancy of the residence for one spouse while the case is pending, limits on spending, or a receiver to preserve property.

Some Texas counties publish standing orders for family cases. Collin County district courts publish a Standing Order on Children, Property and Conduct of Parties on the county website. Ask your attorney which orders apply in your county and whether they affect listing the house.

Listing, signing a contract or changing insurance can all touch these orders. Getting written agreement, or court approval when needed, before the sign goes up protects both of you and keeps the closing on track.

Both spouses sign the listing and the contract, and the net proceeds are divided as agreed or ordered. This is often the cleanest path when neither spouse can carry the payment alone. The main decisions are the list price, who handles showings and repairs, and how costs are shared until closing.

One spouse keeps the house and pays the other for their share, often by refinancing the mortgage into their own name. A divorce decree can award the house, but it does not remove the other spouse from the mortgage; only the lender can do that, usually through a refinance.

Some couples agree to keep the house until a set date, for example the end of a school year, and then sell. This works best with a written agreement on who pays the mortgage, taxes, insurance and repairs, and on how and when the sale happens.

A market analysis or an appraisal gives both spouses the same number to work from. If the attorneys agree, a neutral listing agent can provide the analysis to both sides at the same time.

Confirm what any standing or temporary orders say about the house, and who must agree to list it.

Both spouses should receive the same information at the same time. Put the plan in writing: list price, who approves offers, and how repairs and showing access are handled.

Keep the mortgage, insurance and utilities current until closing. Missed payments hurt both credit reports and can reduce what you both walk away with.

Both spouses sign the contract, amendments and closing documents. Ask the title company whether separate signing appointments are possible, which can make closing day easier.

The title company pays off liens and disburses proceeds according to the signed instructions and any court order, so make sure the decree or agreement is clear before closing.