When couples divorce, it’s not uncommon for one or both spouses to want to begin the process of “moving on” prior to the divorce becoming final. One important detail might be purchasing a new home to jump-start your new “post-divorce” life. Caution is warranted here.
In Texas, title to real property follows a rule called “inception of title.” As a general rule, inception of title occurs when the contract to purchase real property is signed or a down payment made that secures a right to purchase.1,2 In that light, a spouse who moves too quickly, and without coordination with his or her attorney, might put their post-divorce home at risk. It could be considered community property subject to division at the final divorce hearing.
One way to avoid this is through cooperation of the spouses that is best facilitated by the attorneys. The spouses have can sign an informal settlement agreement, not subject to revocation, that designates the real property as that spouse’s separate property, to be confirmed as such in the final decree. If a specific home has already been located, it can be identified by street and legal address. If one or both spouses are “shopping,” the agreement could be effective for any real property purchased after the date of the agreement.
Speak with a qualified divorce and family law attorney if you have questions or before you proceed.
Author Jim Cramp is a retired active duty colonel and the founder and principal attorney at the Cramp Law Firm, PLLC. The firm provides a spectrum of family law-related services to clients in the greater San Antonio region, across the United States and throughout the world. The firms also provides Wills and Estates and Probate services.
Note1 – But see Carter v. Carter, 736 S.W.2d 775, 779-780 (Tex. App.–Houston [14th Dist.] 1987 no writ) (stating that since the prospective spouse signed the purchase agreement prior to marriage and made the down payment with separate property funds, the house was separate property because a marriage did not exist at inception of title)
Note2 – See Winkle v. Winkle, 951 S.W.2d 80, 88 (Tex. App.–Corpus Christi 1997, den.) (inception of title occurred when spouses made down payment on lot)