For many couples, buying a home counts as one of the most significant milestones of married life. The family home also qualifies as one of the biggest assets in many marital estates, which means any equity in that home may be subject to division upon divorce. Since Texas is a community property state that also recognizes separate property, these bought-the-house-before-marriage divorce situations can get complicated for spouses seeking a divorce.
How the division of property shakes out will depend on whether the marital house bought before marriage was bought by one or both parties, among other factors.
Is a house bought before marriage marital property?
In regard to property acquired before marriage, the state of Texas views property an individual acquires prior to marriage as that individual’s separate property. So if you’re wondering what happens if you bought a house before marriage in Texas, the state would generally view that home as your separate property, meaning the home is not considered community property or subject to fair and equitable division upon divorce.
We do see some bought-house-before-marriage divorce scenarios where one party has good credit and the other party does not. Prior to the couple’s wedding day, the party with good credit buys the home and puts it in her name, while the party with bad credit comes up with the money in cash for the down payment.
When these couples decide to divorce, we often see circumstances where the party who made the down payment thinks he jointly owns the house with the other party—but he does not. Instead, he would be in a position where his down payment may be reimbursable but he doesn’t have any ownership stake in the home. The home would be considered separate property solely owned by the person whose name is on the title, due to the inception of title rule.
Learn more about community property and the protection of assets here.
What happens if my spouse and I bought the house before marriage?
First of all, if you are thinking about buying a house with your fiancé before marriage, I strongly advise against doing so. However, if you and your fiancé have your heart set on buying a house, it’s critical to speak with an attorney to learn how property owned before marriage in Texas would be divided in the event of divorce and what steps you can take to clarify and simplify matters just in case.
The reason you shouldn’t buy a house together before marriage is because by doing so you create an undivided separate property interest in the home for each party. That means both parties have the right to use and enjoy the home and can do whatever they want there. Should the couple decide to divorce, they must go to civil district court to divide the property.
Some people mistakenly believe family courts can resolve all issues involving property agreements. This is simply not true. The family courts do not have the power to divide separate property and award it to another party if you bought a house before marriage as a couple. These courts deal with community property and custody disputes involving children, as well as determine child support owed by one party to another. When it comes to separate property, family courts only have the power to confirm separate property so off to civil court you go. If you think divorce attorneys are expensive, hire a civil law firm to help you divide up a house bought before marriage or another tangible piece of property.
Now, if you and your betrothed think ahead, there are steps you can take to avoid the larger hassle of dividing your undivided separate property in civil court. Under Texas law, you could enter into a partnership agreement, which states each party owns 50% of the property, and in the event of a dissolution of marriage, the property will be sold by Realtor “A”, with any profits split equally—or other arrangements you agree to.
Not sure what to do if I bought a house before marriage and a divorce is imminent?
If a house is bought before marriage, it’s important to speak with a knowledgeable family law attorney to learn how that will affect your divorce settlement. In a Texas divorce, a house bought before marriage can lead to a messy real estate battle for all involved. This is especially true if you don’t plan in advance or understand what interest in the home you will retain should you divorce.
The experienced family lawyers at the Sisemore Law Firm in Fort Worth are here to help. To schedule a confidential consultation with our founder attorney Justin Sisemore, please call our law office at (817) 336-4444 or connect with us online.
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